INTERNATIONAL COURT OF JUSTICE
MARITIME DELIMITA TION
BETWEEN NICARAGUA AND HONDURAS
IN THE CARIBBEAN SEA
(NICARAGUA v. HONDURAS)
REPLYOFTHE
GOVERNMENT OF NICARAGUA
VOLUME!
13 JANUARY 2003 TABLE OF CONTENTS
INTRODUCTION ....................................................................1...
.................
1.Brief Reminder of the Procedure ............................................1...............
Il. Main Issue in Dispute ....................................................2...................
...
Ill. Outline of the Reply ....................................................3...................
.....
CHAPTER 1:MAIN FEATURES OF THE HONDURAN COUNTER-
MEMORIAL ........................................................................5...........................
1.Points of Agreement of the Parties .........................................5...............
A. }URISDICTION OF THE COURT AND ADMISSIBILITY OF THE APPLICA TlON .......•.5..•
B. OBJECT OF THE DISPUTE ......••...................••..•...•.••.....•
....6.•.....•.....••.•..•....•
C. PARTIAL AGREEMENT OF THE PARTIES CONCERNING THE MARITIME DELIMITATION
··················
··················
··················
·························
··················
···
Il. The Honduran Case as Presented in the Counter-Memorial ............... 11
A. THE HONDURAN POSTULA TES ..............................................11.................
B. HONDURAS IGNORES THE RULES AND PRINCIPLES OF MARITIME DELIMITATION. 14
CHAPTER II: MARITIME DELIMITATION: THE METHODOLOGY
ADOPTED BY HONDURAS ...........................................................15........
1.Introduction: the Honduran Aversion to Coastal Relationships ........... 15
Il. The Honduran Caricature of the Geographical Context of the
Dispute ....................................................................15..
............................
III. The Honduran Argument has No Relation to the Geographical
Context. ...................................................................16...
...........................
IV. The Concept of Relevant Circumstances Adopted by Honduras is
Erroneous ........................................................................
.........................
V. Conclusion ..............................................................24........
..................
CHAPTER III: THE LEGAL AND POLITICAL GEOGRAPHY OF THE
REGION ........................................................................27.............................
1.Introduction .............................................................27.........
..................
Il. Geography of the Area ..................................................27....................
A. THE GENERAL ORIENT ATION OF THE COAST .................................27............
B. THE GENERAL ORIENTATION OF THE LAND BOUNDARY ..........................28....
C. THE SPECIAL CHARACTER OF THE RIVER COCO ...............................29..........
D. THENICARAGUAN RISE .................................................30.....................
..
E. THE ISLETS AND ROCKS SITUATED IN THE AREA TO BE DELIMITED .............30...
III. The Legal Context - The Relevance of Delimitation Agreements in
the Region and Elsewhere ...................................................34..................
A. THE TREATIES HONDURAS CONSIDERS OF PARTICULAR IMPORTANCE ..............35
B. 0THER TREATIES REFERRED TO IN THE TEXT OF THE COUNTER-MEMORIAL .......40
C. DELIMITA TlON AGREEMENTS IN THE CARIBBEAN REGION AND ELSEWHERE .•...• 40
D. THE VIEW OF THE COURT AND OTHER INTERNATIONAL TRIBUNALS ...............45CHAPTER IV: THE RELEVANCE OF THE UT! POSSIDETIS
PRINCIPLE .......................................................................49.........................
1.Introduction ...............................................................49.......
..................
A. THE POSITION OF HONDURAS .........•....•.............••...•..•.••.......49•.•.•••.•..•...••..
B.THE POSITION OF NICARAGUA •............••....•...•..............•.•.•••
.50..........••...••.
II. The limited relevance of the Award of 1906 .............................51.......
III.Uti possidetis iuris outside the 1906 Award? .................................... 57
A. No ISLAND UT/ POSSIDETIS [URIS EXISTS IN THE AREA IN DISPUTE •.•••.•.•.•59•••..
B. No MARITIME UT! POSSIDETIS lURIS EXISTS IN THE AREA IN DISPUTE .•.....••65••..
IV. Conclusions ..............................................................68........
...............
CHAPTER V: THE RELEVANCE OF THE EFFECTIVITÉS TO
MARITIME DELIMITATION ...........................................................71......
1.Introduction ...............................................................71.......
..................
A. THE EFFECTIVITÉS ACCORDING TO HONDURAS .................................71.........
B.THE EFFECTIVITÉS ACCORDING TO NICARAGUA .......••...••...•.•.•••...•.....72..•.
.•.•
C.HONDURAS HAS NO LEGAL AND ADMINISTRATIVE EFFECTIVITÉS IN THE AREA IN
DISPUTE ....••............•..•...........•••.••.•.
.•........•.•....•..•...73.•.•.•..•.•••
.•...•.......••.•
D. No HONDURAN EFFECTIVITÉS EXJST REGARDING ECONOMJC ACTJVITY IN THE
AREA IN DISPUTE •.........••........•..•..................••...•
.•........76..•....•••..••..•.........
E. HONDURAS HAS NO OTHER EFFECTIVITÉS IN THE AREA IN DISPUTE ••...•....•...84..
F. CONCLUSION •..•......•..•••.......•...••..•.•.....
........•.......•....89.•......•.•.•••.•..
••..••.
CHAPTER VI: TITLE TO THE ISLETS AND ROCKS ........................... 91
1.The bases of the Honduran claim ............................................93...........
A. THE HISTORY OF THE DISPUTE DURING THE COLONIAL PERIOD AND THE !9TH
CENTURY AND THE RELEVANCE OF THE PRINCIPLE OF UT/POSSIDETIS fU RIS .•••.96•••
B.THE ARBITRAL A WARD OF THE KING OF SPAIN OF 1906........................97........
C.THE PRACTICE OF HONDURAS BETWEEN 1906 AND 1960......................97.......
D. LEGISLATION OF HONDURAS .................•................•.•...........98.•.••
.•••..•.....
E. CARTOGRAPHie EVIDENCE ••.........................•..•..........•...•.••99•..........•...•.••.
F.CONCLUSIONS ON THE HONDURAN ARGUMENTS CONCERNING TITLE TO THE ISLETS
IN DISPUTE .......••......•..•.........•...........•.•...•.
............••124.•........•••..••..•.•
.•...
II. The bases of the Nicaraguan claim (including effectivités) .........126..
A.THE UT/ POSSIDETIS IURIS OF1821.........................................127...............
B.THE TURTLE FISHING DISPUTE .•........••...•.......•.•..•••..•.•.•
..•.•.128••......•.••••••
C.THE ARBITRAL A WARD OF THE KING OF SPAIN OF 1906........................129......
D.THELEGISLATIONOFNICARAGUA ........................................129...............
E. CARTOGRAPHie EVIDENCE ..•.......•..••........•..•.••........•...•
..••J3Q..••..•.••........
F.EFFECTIVITÉS AND THE EXERCISE OF NICARAGUAN SOVEREJGNTY AND
JURISDICTION OVER THE ISLETS IN DISPUTE ...................................)33............
III. Conclusions on the Nicaraguan Arguments concerning the Title to the
Islets in Dispute ........................................................................
.............
CHAPTER VII: THE WEAKNESS OF THE HONDURAN ARGUMENT
BASEDONCONDUCT ....................................................141.................
...
1.Introduction ..............................................................141.......
................
Il Il. Conduct of the parties before 1963................................................... 142
Ill. Conduct of the parties between 1963 and 1977............................... 145
IV. The conduct of the parties since 1977 ............................................. 152
V. Conclusion ........................................................................
................. 165
CHAPTER VIII: THE APPLICABLE PRINCIPLES OF THE LAW OF
THE SEA (THE METHODS OF DELIMITATION) ............................... 167
1.The Applicability of The 1982 United Nations Convention On The Law
of The Sea.....................................................................167
......................
Il. The Legal Principles Applicable to the Case .................................... 170
CHAPTER IX: THE COURSE OF THE BOUNDARY ........................... 179
1.The Purpose .................................................................179....
................
Il. The Delimitation on the Basis of a Single Maritime Boundary ........ 179
III. The Bisector Method of Delimitation .............................................. 180
IV. Relevant Circumstances: Equitable Criteria Confirming the Equitable
Result Produced by the Bisector Method .............................................. 182
A. THE INCIDENCE OF NA TIONAL RESOURCES ....................................182........
B.THE INCIDENCE OF FISHER !ES AND HYDROCARBONS IN THE DJSPUTED AREA ... 182
C. THE PRINCIPLE OF EQUITABLE ACCESS TO THE NATURAL RESOURCES OF THE
DISPUTED AREA ..............................................................183.......
.............
D. THE GEOLOGY AND GEOMORPHOLOGY OF THE NICARAGUAN RISE ...........183..
E. SECURITY CONSIDERATIONS .................................................184..............
F.THE CONDUCT OF THE PARTIES ...............................................185............
G. ÜIL AND GAS CONCESSIONS .................................................186..............
H. F!SHING ACTIVITIES ......................................................187...............
....
1.NAVALANDAERIALPATROLS ..............................................187...............
V. The Ambiguous Position of Honduras in Relation to the Equitable
Principles and the Geographical Configuration ..................................... 187
A. THE REFERENCE TO EQUITABLE PRINCIPLES IN THE INTRODUCTION TO CHAPTER 7
........................................................................
...188.............................
B.THE SUPERFICIAL INVOCATlON OF RELEVANT CIRCUMSTANCES .....................189
C. THE REFERENCE TOEQUITABLE PRINCIPLES IN PARAGRAPHS 7.29-7.30 ........189
D. THE REFERENCE TO EQUITABLE PRINCIPLES IN CHAPTER 8 ...................189.....
VI. The Effects of other Delimitations in the Same Region .................. 190
VII. The Criterion or Factor of Proportiona1ity..................................... 193
VIII. Conclusion ..............................................................194.......
............
CHAPTER X: THE POINT OF DEPARTURE AND THE TERMINUS OF
THE MARITIME BOUNDARY ............................................................... 195
1.The Point of Departure of The Maritime Boundary ........................... 195
A. REITERATION OF THE NICARAGUAN POSITION ..................................195......
B. THE HONDURAN ARGUMENT ...................................................197...........
C. THE APPLICABLE GENERAL PRINCIPLES .......................................203.........
II. The Terminus of The Delimitation of The Maritime Boundary ....... 206
IIISUBMISSIONS .....................................................................209
.................
ADDENDUM ........................................................................211..................
LIST OF MAPS AND FIGURES ........................................................213...
LIST OF ANNEXES .................................................................214....
.........
IV INTRODUCTION
1. This Reply is filed pursuant to the Order of the Court of 13 June
2002 fixing 13 January 2003 as the time-limit for the filing of the
Reply of the Republic of Nicaragua.
1.Brief Reminder of the Procedure
2. This case has been brought to the Court by Nicaragua on the basis of
an Application of 8 December 1999, which was filed after severa}
failed attempts to find a negotiated solution to the dispute between
the Parties conceming the delimitation of their respective maritime
areas.
3. In this Application, Nicaragua has stated that the jurisdiction of the
Court is based first on the optional declarations made by both Parties
under Article 36, paragraph 2, of the Statute of the Court and,
second, on Article XXXI of the American Treaty on Pacifie
Settlement of Disputes of 30 April 1948 (the "Pact of Bogota")
according to which the jurisdiction of the Court is compulsory ipso
facto and without the necessity of any special agreement for ali
disputes of a juridical nature conceming (among others) any
question of international law.
4. On 21 March 2000, the Court issued an Order fixing 21 March 2001
as the time-Iimit for the filing of the Memorial of Nicaragua and 21
March 2002 for the Counter-Memorial of Honduras. Both written
pleadings were filed within the assigned time-limits.
5. However, in her Counter-Memorial, Honduras relied heavily on
documents that were not annexed to her Counter-Memorial, but
merely deposited with the Registry. Most of these documents were
in Spanish and had not been translated into one of the official
languages of the Court. As the Agent of Nicaragua noted during a
meeting held on 5 June 2002 by the President of the Court with the
Agents of the Parties, such a behaviour was clearly inconsistent with
Articles50 and 51 of the Rules of Court.
6. During this same meeting it was then agreed that:
"1) Within the next three weeks, Honduras, having
regard to the relevant references [to those deposited documents 1 in its Counter-Memorial, will inform the
Registry which of these additional documents it is
intending to produce as documents annexed to the
said Counter-Memorial.
"2) By 13 September 2002 at the latest, Honduras will
file in the Registry 125 copies of the documents so
selected, which will be considered as documents
annexed to its Counter-Memorial under Article 50 of
the Rules of Court. As provided in paragraph 2 of that
Article, '[i]f only parts of a document are relevant,
only such extracts as are necessary for the purpose of
the pleading in question need be annexed'.
"3) In conformity with article 51, paragraph 3, of the
Rules of Court, if such documents are not in one of
the official languages of the Court, Honduras will
provide translations into one of these languages
certified as accurate".
7. The agreement of the parties on this procedure was acknowledged by
a letterf the Registrar to the Agent of Honduras of 6 June 2002 (the
textof this letter is reproduced in Honduras' Additional Annexes to
Volume 2 of her Counter-Memorial dated 13 September 2002, p. ix).
8. In conformity with this agreement, on 25 June 2002, the Co-Agent
of Honduras sent a Ietter to the Registrar to which was attached a list
of 74 documents which she presented as new annexes to her
Counter-Memorial. The documents were annexed in their original
language and the passages Honduras considered relevant in those
documents in Spanish were highlighted and finally translated into
English and formally presented on 13 September 2002 as
"Additional Annexes to Volume 2 filed under Article 50 of the Rules
of Court Pursuant to the Agreement of the Parties of 5 June 2002".
These new annexes are numbered 170 to 231.
II. Main Issue in Dispute
9. The main difference between the Parties, the basic issue in dispute is
that whilst Honduras "maintains that there is a boundary between the
maritime spaces of the two States which has its origins in the
principle of uti possidetis iuris and which is firmly rooted in the
practice of both Honduras and Nicaragua and confirmed by the
2 practice of third States" 1,Nicaragua for her part "has consistently
maintained the position that its maritime Caribbean boundary with
Honduras has not been delimited." 2
1O.The history of the dispute is amply explained and documented in
Chapters III to V of Nicaragua's Memorial and will not be reiterated
in this Reply except when necessary to clarify erroneous or inexact
statements or interpretations of facts in the Honduran Counter
Memorial.
11.For the above reason Nicaragua will mere1y recall that it is an
undisputed historical fact that during the whole 19thcentury and up
to January 1963 Nicaragua exercised whatever sovereignty and
jurisdiction were possible in the Caribbean coast in areas that
reached further north than the present boundary located at the
3
thalweg of the River Coco.
12. When it became apparent in the 1970s that the international
community would recognize maritime zones that went beyond the
traditional 3 mile territorial sea, Nicaragua proposed to Honduras to
initiate negotiations for a maritime delimitation in the Caribbean in
1977. This was the first time that any official steps were taken to
begin negotiations and Hondura's response was an unequivocal and
unconditional acceptance of Nicaragua's offer to start negotiations.
No mention was made then by Honduras of the existence of any
traditionalline of delimitation 4.
13. The change of Government that occurred in Nicaragua in 1979, and
the hostilities that broke out in the region in the context of the East
West confrontation, were taken advantage of by Honduras to claim,
for the first time officially in 1982, that there was a traditionalline of
delimitation that conveniently gave ber the lion's share of the
5
maritime areas available for division between the two States.
III.Outline of the Reply
14. Postulating that there is already a maritime boundary between the
two Parties - while the purpose of the Nicaraguan Application
precisely is to ask the Court to draw such a tine - Honduras bas
chosen to build ber case on a contrived argument based on alleged
1HCM, Vol. 1, Chap. 1para. 1.4.
2NM, Vol. 1Chap. 1para. 1.6.
3NM, Vol. 1,Chap. Ill.
4
5NM, Vol. 1,Chap. IV.
NM, Vol. 1,Chap. V.
3 conduct of both Parties, without answering Nicaragua's case based
on the law of maritime delimitation.
15. Contrary to the way Honduras proceeded in her Counter-Memorial,
Nicaragua intends to fully address the other Party's arguments, even
though, for the most part, they are not directed to the points at issue
in the present case. In accordance with the text and spirit of Article
49, Paragraph 3, of the Rules of Court, Nicaragua will direct the
main part of this Reply to rebutting the arguments made in the
Counter-Memorial. However, since that pleading discusses points
which seem highly irrelevant to the present dispute, Nicaragua will
refocus the debate on the real point, namely, the determination of a
boundary line in accordance with the principles and rules of
maritime delimitation, as embodied in the 1982 Convention on the
Law of the Sea.
16. Accordingly, the present Reply will be divided into 10 Chapters:
• Chapter I addresses the main features of the Honduran
Counter Memorial including the points of agreement of
the Parties.
• Chapter II examines the methodology adopted by
Honduras in her Counter Memorial in relation to the
maritime delimitation.
• Chapter III recapitulates what constitutes the relevant
legal and political geography for the maritime
delimitation.
• Chapter IV examines the relevance of the uti possidetis
principle for the present case.
• Chapter V analyses the relevance of the effectivités to
maritime delimitation.
• Chapter VI is an analysis of title to islets and rocks.
• Chapter VII demonstrates the weakness of the Honduran
argument that there exists a boundary line based on the
conduct of the Parties.
• Chapter VIII analyses the legal principles applicable to
the case with special attention on the methods of
delimitation and the role of equity.
• Chapter IX reaffirms the position of Nicaragua on the
course of the maritime boundary.
• Chapter X addresses the point of departure and the
terminus of the maritime boundary.
4 CHAPTERI
MAIN FEATURES OF THE HONDURAN COUNTER-MEMORIAL
1.1 The Honduran Counter-Memorial conspicuously ignores the rather
important points of agreement of the Parties. While there is no
question that there is a dispute between them - a point that is not
challenged by Honduras -, this does not imply that they disagree on
ali and every point of fact or of law relevant for the seulement of this
dispute. And it is striking that such points of agreement do exist in
the present case (Section 1)even though Honduras does not draw the
same consequences from them as Nicaragua and presents her own
case in a most debatable and partial way (Section II).
1.Points of Agreement of the Parties
A.JURISDICTION OF THE COURT AND ADMISSIBILITY OF THE APPLICATION
1.2 While regretting that no compromis has been signed between the
Parties, Honduras:
"welcomes the prospect of the Court giving an
authoritative determination of the boundary
between the seabed and maritime spaces
appertaining to the two States. Honduras agrees
that the Court should determine the location of
a single maritime boundary and that it should
do so 'in accordance with equitable principles
and relevant circumstances recognized by
6
general international law"'
1.3 While noting that it makes no difference whether the case is brought
by an Application based on the former agreement of the Parties or by
a special agreement, Nicaragua is pleased about this similarity of
views between them as to the importance of the Court'sJudgment in
this case, which will put an end to a long lasting dispute between the
two States as res judicata. She nevertheless regrets that Honduras
did not accept to submit the whole of this dispute to the Court when
Nicaragua proposed it in 1997. This would have avoided the
6
7HCM, Vol. 1, para. 1.2.
See affidavit of Dr. Alejandro Montiel in Vol. II Annex 1 and Chapter VII, para. 7.62.
5 problem created by the Honduran ratification of the Treaty with
Colombia in November 1999, a Treaty that ignored the existence of
this dispute and, even more, aggravated the existing situation
between the two States.
B.ÜBJECT OF THE DISPUTE
1.4 It is also striking that both Parties globally agree on the object and
scope of the dispute, both geographically and in respect of the
general characteristics of the line to be decided by the Court.
1.5 Concerning the first aspect, it must be noted that the Honduran
extreme claim extends south only as far as the so-called "15 1h
parallel" (on the precise definition of this misleading expression, see
below, Chapter X paragraph 10.3), a parallel she chooses as the
8
maritime boundary between the Parties • Nowhere in the Counter
Memorial does Honduras suggest that she could have claims south
of this tine. Nicaragua of course does not accept this tine which has
never been accepted as the boundary in the past and which is based
on no relevant rule or princip le of the law of the sea and would result
in a grossly inequitable solution. However, it is nonetheless clearly
apparent that the Parties "agree on their disagreement" in this
1
respect, and that the dispute is confined to the area north of the 15 h
parallel. As Honduras puts it:
"The maritime areas off the coasts of Honduras
and Nicaragua which are the subject of these
proceedings are those which are located in the
area north of latitude 14°59.8', traditionally
referred to as the '15 h parallel' from Cape
Gracias a Dios, north and south of the mouth of
the Coco/Segovia/Wanks River" 9•
1.6 The other aspect of the agreement between the Parties in relation
with the object of the dispute, pertains to the very request made to
the Court: it is asked by both (Nicaragua Memorial, paragraphs 2-19;
see also Submissions, page 167) and Honduras (Counter-Memorial,
paragraph 7.38; see also Submissions, page 151), to draw a single
maritime boundary between them. As the Court noted in severa)
recent cases, when the Parties so agree, it is its task to determine
accordingly a single tine of delimitation (see I.C.J., Chamber,
Judgment of 12 October 1984, Delimitation of the Maritime
Boundary in the Gulf of Maine Area, ICJ Rep. 1984, p. 267, para.
xSee the Honduran Submissions, HCM, Vol. 1,p. 151.
9
HCM, Vol. 1, para. 8.3; see also, NM, Vol. 1,para. 8.
6 27; I.C.J., Judgment of 16 March 2001, Maritime Delimitation and
Territorial Questions Between Qatar and Barhain, para. 168 or
Judgment of 10 October 2002, Land and Maritime Boundary
Between Cameroon and Nigeria, para. 286).
1.7 lt is, however, to be regretted that Honduras, while agreeing in
principle that the task of the Court in this case is to draw a single
maritime boundary, endeavours to empty this common request of
partof its significance.
1.8 As the Court noted in The Qatar/Bahrain case, "the concept of
'single maritime boundary' may encompass a number of functions"
(Judgment pree., paragraph 169). lt may mean on the one hand that
the line is single for both the continental shelf and the economie
exclusive zone - in this respect, the Parties in the present case seem
to be in full agreement. It may also mean, on the other hand, that the
line follows a single direction in both the territorial sea and beyond.
From this point of view, the Honduran position is ambiguous to say
the least: in fact, the line Honduras suggests for the delimitation of
the respective territorial sea of the Parties, is the continuation
westward of the line she proposes with respect of the continental
shelf and the exclusive economie zone 10;but, at the same time, she
states that "[t]he Court should begin the line only at the outer limit of
territorial waters" (ibid).
1.9 With this request, Honduras tries to indirectly appropriate the part of
land formed on the right bank of the River Coco after December
1962, without confronting the issue of the consequences of the
Award of the King of Spain of 1906 regarding the end point of the
land boundary, an issue which is fatal to her case, as will be shown
in sorne detail in Chapter X below (see also, paragraphs 1.12-1.14 ).
1.10 In any case, while both Parties agree that it might be prudent for the
Court not to fix a line beginning at the actual mouth of the River
Coco (see below, paragraph 1.22), it would indeed be most
inappropriate to leave such a wide area undelimited - ail the more so
that Honduras would, no doubt, invoke her unacceptable claim to get
a foothold on the right bank of the River Coco.
10HCM, Vol. 1, para. 7.41.
7 C.PARTIAL AGREEMENT OF THE PARTIES CONCERNING THE MARITIME DELIMITATION
1.11 There can be no doubt that the Parties strongly disagree with regard to
the method of delimitation to be applied in the present case. However,
even in this respect, sorne important points of agreement can be noted,
in particular concerning sorne aspects related to:
-the terminus of the land boundary (see above, paragraphs 1.7-1.10);
- the impossibility to draw a strict median line; and
- the roleof islands in the maritime delimitation in the present case.
/. The Terminus Poill! of the Land Boundary
1.12 In her Counter-Memorial, Honduras stresses that "a further factor, of
the greatest significance for the Court's task, is the graduai
11
movement eastwards of the actual mouth of the River Coco" •Even
though it would be more accurate to describe this move as being
"north-eastwards" than purely "eastwards", this statement echoes the
findings in the Memorial: "The delta of the Coco, where the land
boundary as it enters the sea, has been rapidly increasing and
projecting Cape Gracias a Dios towards the sea" 12
1.13 Moreover, both Parties also agree that "[ijt follows from this that the
mouth of the river identified as the endpoint of the boundary
established by the Award of the King of Spain in 1906 will change
from time to tme". 13 And, for both, the conclusion from this fact is
that: "[t]hus prudence (and res judicata) would suggest that the
Court should not be requested to determine either the location of the
river, or even the starting point of the line immediately east of this
point" (Honduran Counter-Memorial, paragraph 7.41; c.f.
Nicaraguan Memorial, paragraph 22: "Thus, seeking a degree of
permanence of the maritime boundary, Nicaragua considers that the
instability and the wide fluctuations in the course of the Coco River,
particularly at its mouth, justifies setting the starting point of the
maritime delimitation for present purposes at a prudent distance
from the mouth of the River").
1.14 Two remarks must nevertheless be made in this respect:
(a) As explained above (paragraphs 1.7-1.10), as a consequence
of the continuing changes in the mouth of the River Coco,
Honduras proposes to fix the starting point of the maritime
delimitation at 12 nautical miles from the coast. This is not a
11
12HCM, Vol. 1,para. 7.39; see also para. 7.12.
13NM, Vol. l, paras. 19, 22 or 30; see also paras. 17-19.
HCM, Vol. 1, para. 7.39; cNM, para. 20 or, para. (ii).
8 "prudent distance", but a very exaggerated one inspired by
the Honduran hope that, owing to this, it would
surreptitiously get a foot-hold on the right bank of the River
Coco.
(b) Whatever the Honduran allegations (see e.g. Honduran
Counter-Memorial, page 72, paragraph 5.6), Nicaragua
certainly does not challenge that the 1906 Award of the King
of Spain, as interpreted by the Court's Judgment of 1960, is
binding upon the Parties (Nicaraguan Memorial, paragraph
18; cf. Honduran Counter-Memorial, paragraph 1.18 or 7.41)
nor that, beginning atape Gracias a Dios, the land boundary
between the Parties follows the thalweg of the River Coco
(Nicaraguan Memorial, paragraph 9; cf. Honduran Counter
Memorial, paragraph 7.41). Nicaragua wishes to make
absolutely clear that she does not put them into question.
Quite the contrary, Nicaragua relies on them and it is the
Honduran attempt to take over part of the right bank of the
River Coco that constitutes a violation of the Arbitral Award
of the King of Spain that clearly determined that the right
bank of the River Coco is part of the territory of Nicaragua.
1.15 Nicaragua has also noted that Honduras now recognizes that: "With
respect to the starting point for the 1962 delimitation Honduras has
always considered, and continues to consider, that the demarcation
line is at parallel 14°59.8"' (paragraph 1.30; and this correct
statement is repeated elsewhere - see e.g.: pages 25-27, paragraphs
2.25-2.27 or 7.35).
2. Partial Agreement of the Parties With Respect of Certain Criteria
Applying to the Princip/es of Delimitation
1.16 With respect to the law applicable to this case, Honduras contends
that it is "the positive customary law of the sea as reflected by the
practice of States, the relevant articles of the 1982 Convention, and
the international case law, beginning with the judgments of the
International Court of Justice" (Honduran Counter-Memorial, page
60, paragraph 4.8). Nicaragua does not take issue with this general
statement. Unfortunately, as will be shown below (paragraphs 1.34-
1.36 and Chapter VIII), Honduras does not draw the correct
consequences there from and, indeed, hardly draws any
consequences from this correct statement since she entirely ignores
the requirements and rules of the law of the sea.
91.17 However, it is worth noting that the Parties agree on two "negative"
but important points:
- jïrst, both of them agree that a strict median line would be
impracticable in the present case;
- second, they also both consider that the islands or islets in the
area have no effect on the delimitation.
1.18 As to the first point of agreement, Nicaragua explained in her
Memorial that a mechanical application of the equidistance principle
is not workable in this case since the points of reference would
unavoidably be the two single points on both banks of the river
mouth, which is, moreover, an unstable and moving feature 1• For
her part, "Honduras agrees with Nicaragua that, [in the sector of the
territorial sea], there are 'special circumstances' which, under Article
15 of the 1982 Convention on the Law of the Sea, require a
delimitation by a line other than a strict median line" 1• This is an
important point of agreement which must be duly acknowledged and
the consequences of which will be further developed in Chapter VIII
below.
1.19 Similarly, both Parties agree that the islands and islets in the area
have no consequences on the delimitation of the boundary line,
whether they appertain to Honduras (quod non as will be
demonstrated in Chapter VI below), or to Nicaragua (cf. Honduras
Counter-Memorial, paragraph 7.28 or Nicaraguan Memorial,
paragraph 31).
1.20 Itthen appears that, while still opposed on severa! crucial points, the
Parties are in agreement on sorne points which, if properly construed
and taken in due consideration, should have important consequences
for the solution of the present dispute. Unfortunately, Honduras
either ignores those consequences or ultimately contradicts the
agreement she gives in principle to Nicaragua's positions, thus
blowing simultaneously hot and cold.
14
15See NM, Vol. 1,para. 23.
HCM, Vol. 1, para. 7.39.
10 II. The Honduran Case as Presented in the Counter-Memorial
1.21 The Honduran Counter-Memorial presents two most significant
main features:
- on the one hand it loftily ignores the rules and principles of delimitation
according to the law of the sea, thus omitting to address most of the
Nicaraguan case (Section B);
- the "explanation" for this surprising approach is supposed to be found in
sorne postulates on which Honduras bases her own case (Section A).
A. THE HONDURAN POSTULA TES
1.22 The whole Honduran case rests on a few postulates, closely linked to
one another, which can be summed up as follows:
(i) Honduras bases her legal title on the maritime areas she
now daims from the uti possidetis principle;
(ii) this legal title has been supposedly confirmed by the
continuous presence of Honduras north of the "15 parahlel";
however and paradoxically,
(iii) the issuef sovereignty over the islands in the area cannot
be submitted to the Court by Nicaragua.
Those points will be dealt with in sorne details in the next chapters
of this Reply; however, they deserve straight-away sorne general
remarks.
1. The Uti Possidetis Principle as a "Legal Title"
1.23 According to Honduras, "[t]he uti possidetis juris is a legal title" 16•
In support of this strong affirmation, Honduras mentions the
Judgments of two Chambers of this Court in the cases concerning
the Frontier Dispute between Burkina Faso and Mali and The Land,
Island and Maritime Frontier Dispute between El Salvador and
Honduras (Nicaragua intervening) (Ibid. pages 78-82, paragraphs.
5.19-5.28).
1.24 Had Honduras read more completely and objectively those
Judgments, she would have noted that they say nothing of the kind.
It results from both decisions that theuti possidetis principle is not a
title per se.t is a firmly established rule which may guide the Courts
16
HCM, Vol. 1, para. 5.19.
11 and Tribunats insofar as it "freezes the territorial title" (!Cl Reports
1986, p. 568, para. 30) provided such a territorial title was clear.
However, as the Chamber explained in the 1992 Judgment:
"... certain and stable frontiers are not the ones
that find their way before international tribunats
for decision. These latter frontiers are almost
invariably the ones in respect of which uti
possidetis speaks for once with an uncertain
voice. It can indeed almost be assumed that
boundaries which ... have remained unsettled
since independence, are ones for which the uti
possidetis juris argument17re themselves the
subject of the dispute" .
1.25 These considerations are ali the more meaningful in the present case
in that it concerns maritime areas which, as such, were not before
1821 the object of particular care by the Spanish colonizer. It might
be true that the Spanish Crown claimed a six miles territorial sea (cf.
Honduran Counter-Memorial, paragraph 5.34), but this tells nothing
with regard to the limit of this territorial sea between the Provinces
of Honduras and Nicaragua. Moreover and in any case, as will be
explained in Chapter IV paragraphs 4.60 and 4.61 below, the
Provinces had no jurisdiction on maritime areas. In respect of these
fondamental issues, "uti possidetis speaks ... with an uncertain
voice" since, as will be shown in Chapter IV and VI below,
Honduras has not offered a single evidence of any pre-1821 title of
the Province of Honduras over either the islands or1 globally, the
maritime areas she now cl aims north of the" !5 parallel".
2. The Colltinuous Presence Honduras claims North of the 15 Paralle!
Since 1821
1.26 Honduras does not hesitate to accuse Nicaragua of re-opening
"almost two centuries of settled history" 1• This is an intriguing
statement in view of the complete Jack of any evidence on the part of
Honduras of her presence à titre de souverain either, again, on the
islands she now claims or in the neighbouring waters, at !east before
the critical date, that is, at the time when negotiations on maritime
delimitation were initiated by the two States in 1977 at the request of
Nicaragua.
17
1 ICJ Reports 1992, p. 386, para. 41.
gHCM, Vol. 1,para. 2.12.
121.27 As will be demonstrated in Chapters IV, V and VI below, the
effectivitésnow invoked by Honduras:
- are virtually ali subsequent to this critical date and sorne even post
date the initiation of these proceedings;
- quite often are not specifie with regard to the precise area and/or
island concerned;
- do not meet the requirements for being taken into consideration for
the establishment of a legal title, in particular since they are notà
titre de souverain; and
- are contradicted by important effectivités from Nicaragua, which
reinforce the title of the latter and, at least, show that the alleged
jurisdiction of Honduras on the area has never been peaceful and
unchallenged, after as weil as before the critical date.
1.28 It must also be noted that the Award of the King of Spain of 1906,
confirmed by the International Court of Justice in 1960, is of no help
for the Honduran case. In spite of strong Honduran assertions to the
contrary (see e.g. Honduran Counter-Memorial, page 5, paragraph
1.16 or pages 72-74, paragraphs 5.6-5.12) it will be evident to the
Court that the Award was only concemed with the land delimitation
and drew a boundary starting at the mouth of the River Coco and
with its back:to the Ocean. Moreover, this was also the interpretation
of the Parties during the pleading before this Court and during the
implementation process in the OAS after the Judgment of 1960.
3..The Honduran Paradoxical Position in Respect of the Issue of
Sovereignty Over the Islands
1.29 In Paragraph 8.2 of her Counter-Memorial, Honduras attempts to
forbid Nicaragua to "transform this dispute into a case conceming, in
substantial part, the question of sovereignty over certain islands,
cays, reefs and fishing banks" (page 147; see also page 68, paragraph
4.32). Besides the fact that itis odd that Honduras arrogates such a
power to herself, this statement is highly paradoxical for several
reasons.
1.30 In the first place, this statement does not properly reflect the
Nicaraguan position. As will be apparent from a simple reading of
the Memorial, Nicaragua does not give a prominent importance to
the sovereignty over the islets and other maritime features in the
disputed area. She limits herself to explaining that they must be
treated "on their merits" (Nicaraguan Memorial, page 138). At most,
the activities of the Parties on said isletsà titre de souverain, may
appear as indications of their jurisdiction in the area.
131.31 Second, it is, in fact, Honduras which gives fondamental importance
to those islets and cays to which she devotes a whole Chapter of her
Counter-Memorial (Chapter 6, pages 87-131 ), something which has
no equivalent in the Nicaraguan Memorial.
1.32 Third, this position of Honduras is ali the more puzzling that, as
shawn above (paragraph 1.19), both Parties agree that the islands
and isletsin the area have no consequences on the delimitation of the
boundary line.
1.33 Fourth, Nicaragua consistent with her position on the negligible
effect of the islets on the delimitation had seen no reason to explain
her own not ali negligible activities on and around those islets. This
will now be shawn in Chapter VI below.
B.HONDURAS IGNORES THE RULES AND PRINCIPLES OF MARITIME DELIMITATION
1.34 An eccentric trait of the Honduran Counter-Memorial is that it
devotes only 24 pages (out of 151) to discussing the maritime
delimitation proper. And those twenty-four pages are extraordinarily
conceived: in Chapter 4, Honduras gives her views on "The
Applicable Law", then, after two long excursions on the uti
possidetis principle and the Honduran effectivités, in Chapter 7, she
applies "the relevant circumstances" and proposes a line, virtually
without any kind of justification as to its direction.
1.35 Moreover, as will be explained in Chapters II, VIII and IX, the
methodology (if any) applied by Honduras implies a very peculiar
conception of the "relevant circumstances" most of them being
devoid of any relation to the law of the sea and mainly involving the
conduct of third States not Parties to the present dispute (on this
aspect, see also Chapter III of the present Reply).
1.36 Nicaragua does not contend that "lai case dealing with the law of
maritime delimitation cannat be envisaged exclus19ely within this
specifie branch of public international law" • But one thing is to
apply also any other possible pertinent rule of international law,
quite another thing is to completely ignore the principles and rules of
maritime delimitation in a case concerning ... "exclusive! y" a
maritime delimitation as Honduras herself strongly stresses20 (see
above, paragraph 1.29).
19
20HCM, Vol. 1,para. 4.23.
HCM, Vol. 1,para. 8.2.
14 CHAPTERII
MARITIME DELIMITATION:
THE METHODOLOGY ADOPTED BY HONDURAS
I. Introduction:: the Honduran Aversion to Coastal Relationships
2.1 The purpose of the second chapter of the Reply is to examine the
methodology adopted by Honduras in her Counter-Memorial. In this
context a major feature of the Counter-Memorial is that it sets aside
the coastal geography of the region and the principal coastal
relationships. In face of this, it is ironical that the Government of
Honduras asserts that Nicaragua "ignores geography": Counter
Memorial, paragraph 1.14.
2.2 In the "Conclusions" (at paragraph 8.11) the Government of
Honduras alleges that "the method of delimitation proposed by
Nicaragua is not equitable and does not lead to anequitable result".
However, neither in this passage nor elsewhere in the pleading does
Honduras seek to justify this assertion. Nowhere in the Counter
Memorial is there any discussion of, or reference to, the substantial
section of the Nicaraguan Memorial in which the bisector method is
formulated and legally justified as an effective reflection of the
coastal relationships prevailing in the disputed area: see the
Memorial, pages 95-122, and Figure Il.
II. The Honduran Caricature of the Geographical Context of the
Dispute
2.3 The highly unconventional approach to geography adopted by
Honduras is confirmed by the content of the second chapter of the
pleading entitled"The Geographical Context of the Dispute".
2.4 Section I is entitled "Geography of the Maritime Areas, including
the Islands and Fishing Banks". This section is devoted exclusively
to certain islands lyingo the north of the 15 parallel, together with
certain fishing banks. There is no discussion of the coasts, or the
coastal relationships of the mainlands of Honduras and Nicaragua:
see, on coastal relationships, the Memorial, pages 114-117.
152.5 Section II of the chapter is devoted to "The Importance of
Delimitation Treaties in the Region" (at pages 20-23). But this does
not involve any discussion of coastal relationships in the region.
2.6 The third section relates to the Nicaraguan Rise, which is obviously
not a matter of coastal relationships, and the fourth section is
concerned with the significance of the !5th parallel, which is not a
part of the geographical context.
2.7 It must therefore be concluded that the Honduran conception of the
geographical context is artificial, legally inadequate and unhelpful to
the Court, being confined to certain islands and fishing banks.
III. The Honduran Argument bas No Relation to the Geographical
Context
2.8 The content of the Honduran Counter-Memorial as a whole reveals
very clearly that the argument is based exclusively upon the alleged
conduct of the parties in relation to the !5th parallel. This is
confirmed in the following passages: paragraphs 1.24- 1.27, 2.25 -
2.28, 3.18- 3.36, 4.26- 4.27, 6.76- 6.77, 7.15 -7.25, and 8.7- 8.9.
The Honduran argument based upon the conduct of the parties is
examined in detail in Chapter VII below. For present purposes, the
question at hand is the relation of the Honduran argument
exclusively based upon conduct to the geographical context and the
principlesof maritime delimitation.
2.9 The short answer might be that, given the Honduran decision to rely
exclusively upon the conduct of the parties and the !5th parallel, as
"the traditional boundary" (see the Counter-Memorial, paragraph
2.25, and the heading of the section), the issue of geographical
relationships simply does not arise, and the principles of maritime
delimitations become redundant.
2.10 At this point two questions must be addressed. The first relates to
the absence of any substantial Honduran argument in the alternative
and based upon equitable principles. Whilst Honduras makes her
own choice of arguments, in the circumstances it is an omission
which is very eloquent. lt is eloquent precisely because the
Honduran argument has no relation of any kind to the geographical
context. lt follows that any attempt by Honduras to develop an
alternative argument would involve underlining the inequitable
character of the 15 1h parallel as a maritime boundary. The same
16 source of embarrassment may explain the reticence of the Honduran
pleading evident in the brevity of the comments upon the argument
of Nicaragua based upon equitable principles.
2.11 And there is a second question arising from the exclusive reliance of
1
Honduras upon the 15 parallel as the "traditional boundary". In
principle consent, including consent arising from the conduct of the
parties, is per se in conformity with equitable principles. To put the
matter another way, incompatibility with the equitable principles
goveming maritime delimitation does not as such invalidate the
principleof consent.
2.12 However, in the situation in which the claim line of one of the
parties is unequivocally and essentially incompatible with the legal
criteria (based upon geography) of an equitable result, what is the
position? At the outset there can be no question that a parallel of
latitude, given the significant change in the direction of the coast, is
essentially inequitable. Not only is it inequitable but such a claim
line transgresses the primary equitable principle prohibiting the
cutting-offof a state, in this case Nicaragua, from the continental
shelf or exclusive economie zone lying in front of its coasts (see
Volume Il, Figure 1).
2.13 The equitable criterion of preventing any eut-off of the seaward
projection of the coast of either of the States concemed was affirmed
by the Chamber in the Gulf of Maine case in the following passage:
'157.. There has been no systematic definition
of the equitable criteria that may be taken into
consideration for an international maritime
delimitation, and this would in any event be
difficult a priori, because of their highly
variable adaptability to different concrete
situations. Codification efforts have left this
field untouched. Such criteria have however
been mentioned in the arguments advanced by
the parties in cases conceming the
determination of continental shelf boundaries,
and in the judicial or arbitral decisions in those
cases. There is, for example, the criterion
expressed by the classic formula that the land
dominates the sea he criterion advocating, in
cases where no special circumstances require
correction thereof, the equal division of the
areas of overlap of the maritime and submarine
zones appertaining to the respective coasts of
17 neighbouring States; the criterion that,
whenever possible, the seaward extension of a
State's coast should not encroach upon areas
that are too close to the coast of another State;
the criterion of preventing, as far as possible,
any eut-off of the seaward projection or of part
of the coast of either of the States concerned;
and the criterion whereby, in certain
circumstances, the appropriate consequences
may be drawn from any inequalities in the
extent of the coasts of two States in the same
21
area of delimitation.'(emphasis added).
2.14 This principle was applied in the North Sea cases; see I.C.J. Reports,
1969, pages 17-18, paragraph 8; pages 31-32, paragraph 44; and
pages 36-37, paragraph 57. And in the more recent jurisprudence it
was applied by the Court of Arbitration in the Guinea!Guinea Bissau
Maritime Delimitation case: International Law Reports, Volume 77,
page 636 at pages 681-682, paragraph 103.
2.15 In the cases referred to it was the geography of the coasts which
provoked reference to the criterion of preventing eut-off. In the
present case it is thedaim tine based upon parallel 15°, in relation to
the coastal geography, which leads to a potential breach of the
principle prohibiting the cutting off of Nicaragua from the maritime
areas appurtenant. Whilst the normal cause of a eut-off effect is the
use of the equidistance method in geographically inappropriate
circumstances, the use of a parallel of latitude in relation to a sector
of coast in which there is a marked change in the general direction of
the coast will have similarly objectionable results.
2.16 Whilst such incompatibility with equitable principles does not as such
produce the invalidity of an agreed delimitation, the conspicuously
inequitable outcome of a claim line based upon a parallel must have
the legal consequence that agreement, and certainly not tacit
agreement, should not be presumed and should be the object of a
rigorous standard of proof. In the absence of proof of agreement, the
daim is inequitable and legally invalid.
2.17 In this context, the Tunisia!Libya case does not constitute a useful
comparison. As the Judgment makes dear, the conduct of the
parties in that case had a direct relation to the lines which the parties
themselves may have considered equitable, and which had elements
of mutuality. In the words of the Court:
21I.C.J. Reports, 1984, pp.ll2-1!3.
18 "lt should be made clear that the Court is not
here making a finding of tacit agreement
between the Parties - which, in view of their
more extensive and firmly maintained claims,
would not be possible - nor is it holding that
they are debarred by conduct from pressing
clairns inconsistent with such conduct on sorne
such basis as estoppel. The aspect now under
consideration of the dispute which the Parties
have referred to the Court, as an alternative to
settling it by agreement between themselves, is
what method of delimitation would ensure an
equitable result: and it is evident that the Court
must take into account whatever indicia are
available of the line or lines which the Parties
themselves may have considered equitable or
acted upon as such - if only as an interim
solution affecting part only of the area to be
delimited. In this connection, the Court notes
that Libya, while emphasising that the de facto
line between the concessions was "at no time
accepted by Libya as the legal line of
delimitation", observed that it was one that did
"suggest the kinds of lines that, in the context
of negotiations, might have been put forward
for discussion", that is to say, with a view to
22
achieving an agreed delimitation ... "
2.18 The Court then emphasizes that the line "was drawn by each of the
two States separately.'m No such elements of mutuality are to be
found in the present case.
2.19 The Honduran position is expressed quite clearly (paragraph 7.25
quoted below, paragraph 2.23): the "equities" propounded by
contemporary principles of maritime delimitation cannot be employed
to "demand a revision of the agreement" on which the parallel claim
lineis based in order to establish an "equitable delimitation" de novo.
But, if this is the position, there is no question of the equitable
principles of delimitation, including relevant circumstances, applying
to any extent. The nature of the Honduran pleading confirms that the
15° parallel claim line is not based upon the principles of maritime
delimitation but is"sovereignty"-related. The content of paragraph 8.5
22
23I.C.J. Reports, 1982, p.84, para 118.
I.C.J. Reports, 1982, p.84, para 118.
19 (quoted in paragraph 2.26 below) provides confirmation of the
emphasis upon arguments related to sovereignty.
2.20 The "territorial" and "sovereignty-related"character of the Honduran
claim line is clearly visible in the following passages of the Counter
Memorial:
2.21 '6.4.The objectof this Chapter is not to prove Honduran title
to the islands, but rather to demonstrate that the maritime
boundary proposed by Nicaragua is inconsistent with
Honduras' continuous and peaceful exercise of sovereignty
and jurisdiction over the islands, cays, reefs, banks and
maritime area north of the !5th parallel. That exercise of
sovereignty and jurisdiction constitutes a relevant factor of
prime importance for the purposes of delimiting the
boundary - if not the most important relevant factor. The
evidence tendered by Honduras confirms what has previously
been recognised by both Parties to these proceedings (in the
case of Nicaragua until 1980) as well as by third States,
international organisations and corporations and other private
actors, namely that the !5th parallel constitutes, and has long
constituted, the maritime boundary between Honduras and
Nicaragua.' (footnotes omitted).
2.22 '6.68 Beyond the reco~ni tyiinter alia fishermen and oil
companies of the 15t parallel as the maritime boundary
between Honduras and Nicaragua, a number of States have
recognised Honduran sovereignty and jurisdictional rights
over the islands and waters northf the !5thparallel ... '
2.23 '7.25.Based on this evidence, and on the review of the long
established common practice in Chapter 6 a maritime frontier
running eastwards along approximately the !5th parallel was
well-established by 1979. No rule of law required that the
Parties should embody their agreement in formai, written
treaty form, however desirable that may be. lt would be
quite wrong to allow the new Government of one Party to re
assess the"eguities" of the situation and demand a revision
of the agreement, as of right, orto argue, as Nicaragua now
does, that no agreement exists and an equitable delimitation
must be established denovo'. (emphasis added)
2.24 '7.42. In the submission of the Honduran Government, and
based on the evidence and argument in this Counter
Memorial, this sector of the boundary should be the
traditionalboundary along the !5th parallel (14°59.8'),
20 eastwards until it reaches the longitude at which the 1986
Honduran/Colombian maritime boundary begins
(82°00'00").'
2.25 '7.43.1twill be seen that such aline would maintain the place
of the islands of Bobel Cay, Port Royal Cay, Savanna Cay
and South Cay on the Honduran side, in accordance with the
long-established Honduran sovereignty over these islands;
but it would not accord to the two most southerly islands,
Bobel Cay and South Cay, a full 12-mile territorial sea.
Honduras does not seek to change this. The recognition of
this parallelas a boundary by both States long precedes the
general recognition that such features are entitled to a 12-
mile territorial sea. Honduras, however, does not seek to up
date this maritime frontier by claiming a 12-mile arc around
these islands, creating a deviation in the traditional line.'
(emphasis added)
2.26 '8.5. The law applicable to the case includes the principle of
uti possidetis iuris of 1821 and the Honduran effectivités
since that date, in particular during the 20 h century and
continuing up to the present time. The well-established
principle of uti possidetis is the basis of initial Honduran title
to the territorial sea and the islands, which,n their turn, have
a substantial effect upon the delimitation of the continental
shelf and the EEZ. Further, the principle of uti possidetis
iuris gives rise to a presumption of Honduran title to the
continental shelf and EEZ north of the 15 h parallel
(14°59.8'). In each case, and independently of the
applicability of the principle of uti possidetis iuris, Honduras
effectivités since independence in 1821 confirm Honduran
sovereignty north of the 15hparallel.' (emphasis added)
IV. The Concept of Relevant Circumstances Adopted by Honduras
is Erroneous
2.27 A further eccentricity featured in the Counter-Memorial is a
pervasive confusion between State practice as evidence of title to
islands and relevant circumstances as factors to be taken into account
in determinïng a maritime boundary. This confusion appears in
Chapter 6 of the pleading, in which the alleged evidence of
effectivitésis applied both to islands and the waters 'in the disputed
area north of the 15h parallel': see at page 81, paragraph 6.1.
212.28 This confusion is maintained, and increased, in Chapter 7, in the
section on 'The Relevant Circumstances Ignored by Nicaragua' (at
pages 137-140). As the content of the section and the rubric make
clear, the material is presented in the context of maritime
delimitation.
2.29 In Chapters 6 and 7 the Government of Honduras invokes certain
types of material in the context of maritime delimitation.
a) The regulation of immigration (paragraphs 6.51 - 6.59).
b) Military and naval patrols (paragraphs 6.60- 6.62).
c) Search and rescue operations (paragraphs 6.62).
d) Navigational aids (paragraphs 6.64- 6.66).
e) Scientific surveys (paragraph 6.67).
2.30 The five types of activity are inadmissible as forms of relevant
circumstances to be taken into account for the purposes of
determining a single maritime boundary. Such activities might be
Jegally relevant to issues of title if certain conditions are satisfied.
However, such activities do not constitute relevant circumstances as
a matter of law.
2.31 The primary reason for this is the requirement that the candidate
relevant circumstance should relate to an objective envisaged by
States when they put forward daims to sea-bed areas. For this
reason economie considerations (the relative economie position of
the parties) do not qualify but the incidence of natural resources
almost certainly would qualify: see the Judgment in the Libya!Malta
case, I.C.J. Reports, 1985, page 41, paragraph 50.
2.32 A second reason for discounting this type of evidence is the fact that
activities such as naval patrolling, or search and rescue operations,
cannot be attributed to the exercise of continental shelf rights or
rights relating to an exclusive economie zone. It may be recalled
that in the Gulf of Maine case the Chamber refused to give any
significant effect to this typeof evidence: see the Judgment, I.C.J.
Reports, 1984, pages 339-343, paragraphs 230-238. A similar
attitudeof caution was adopted in respect of acts of naval patrolling
and search and rescue operations by the Eritrea/Yemen Arbitration
Tribunal Award in the first phase: see International Law Reports,
Volume 114, paragraphs 284-311, 493-496. lt is to be recalled that
the first phase of the arbitration was not concerned with maritime
delimitation.
222.33 There is a further, logically connected point, which is that, in
principle, only those circumstances which are compatible with the
form of title are relevant to a delimitation. As the Court observed in
the Libya/Malta case:
"Yet although there may be no legal Iimit to the
considerations which States may take account
of, this can hardly be true for a court applying
equitable procedures. For a court, although
there is assuredly no closed list of
considerations, it is evident that only those that
are pertinent to the institution of the continental
shelf as it has developed within the law, and to
the application of equitable principles to its
delimitation, will qualify for inclusion.
Otherwise, the legal concept of continental
shelf could itself be fundamentally changed by
the introduction of consid24ations strange to its
nature."(emphasis added)
2.34 This principle has been recognised by Professor Weil, a significant
authority on the subject of maritime delimitation: see Weil, The Law
of Maritime· Delimitation - Reflections, Cambridge, 1989, pages
258-259.
2.35 These sources, which reflect the position both for the continental
shelf and for the exclusive economie zone, insist on the connection
between the title of the coastal state, based upon its coastal frontage,
and the concept of relevant circumstances. Relevant circumstances
must either reflect the nature of the title (the existence of a coastal
front) or, as in the case of security interests, reflect the content of the
legal interest which the coastal State has in the shelf or exclusive
economie zone. The type of activities put forward by Honduras do
not qualify. Thus, military and naval patrols are unrelated to the
existence or not of a coastal front, and have no necessary connection
with shelf rights or the exclusive economie zone. The same is true
of search and rescue operations, navigational aids, and scientific
surveys.
24I.C.J. Reports, 1985, pp. 40-41, para. 48.
23 V. Conclusion
2.36 The Honduran argument in this case is fundamentally flawed. The
position can now be presented succinctly. Honduras presents two
arguments, which can be characterized as the conduct argument (the
parallel) and the lawof the sea argument (also the parallel). There
can be no objection to the availability of more than one argument,
provided the arguments are compatible. But the two arguments
fielded by Honduras are incompatible.
2.37 The passages quoted from the Counter-Memorial (see above,
paragraphs 2.21-2.26) indicate, very clearly, that the conduct
argument is independent of the law of the sea argument: see the
Reply, paragraphs 7.25, 7.43 and 8.5. In paragraph 7.25 Honduras
in effect treats the parallel as a form legal status quo based upon
agreement but an agreement which cannot be changed in any way.
2.38 Thus, the Counter Memorial not only presents two incompatible
arguments but indicates a preference for the conduct argument. The
necessary consequence is that the conduct argument eliminates the
law of the sea argument. The further consequence must be that the
conduct argument is independent of the law of the sea argument and
does not qualify as a relevant circumstance.
2.39 The argument based on conduct, in the submission of Nicaragua,
must in any event fail on the evidence (see Chapter VII). ln this
context, the conspicuously inequitable outcome of a claim line based
upon a parallel must have the consequence that agreement should
not be presumed and the issue should be the object of a rigorous
standard of proof.
2.40 The contradictions in the arguments of Honduras are carried over
into the position of Honduras concerning the applicable law. As
paragraphs 7.25, 7.43 and 8.5 reveal (as quoted above) the claim line
is based upon an applicable law relating to the uti possidetis of 1821
and the principle of continuity. This fact provides confirmation that
the claimline is incompatible with the law of the sea.
2.41 The consequence is that the inter-temporal law invoked does not
include the international law of the sea. The substance of the
Counter-Memorial, represented by the passages quoted above,
ignores these issues of inter-temporal law and contradicts the
assertions, elsewhere in the Counter-Memorial, that the Law of the
Sea Convention is applicable: see pages 59-63, paragraphs 4.5-4.17.
242.42 The eccentric features of the Honduran methodology indicated above
derive from a single cause. The Honduran claim line is not, in legal
terms, and as a matter of essence, a maritime delimitation but a fine
intended to allocate sovereignty: see above, paragraphs 2.20-2.27.
This is the explanation of the reliance upon effectivités and the
confusion between effectivités and relevant circumstances. The
claim line is an alleged "traditional boundary" and bears no relation
to the geography of coasts or relevant circumstances.
25 CHAPTERIII
THE LEGAL AND POLITICAL GEOGRAPHY OF THE REGION
1. Introduction
3.1 The purpose of this Chapter is to recapitulate what constitutes the
relevant legal and political geography for the maritime delimitation
between Nicaragua and Honduras and to point out what differences
and points of agreement exist between Nicaragua and Honduras in
this respect.
II. Geography of the Area
3.2 As can be appreciated from a perusal of the Counter-Memorial,
Honduras almost completely ignores the legal and political
geography of the area of relevance for the delimitation of the
maritime boundary between Nicaragua and herself. The Counter
Memorial focuses almost exclusively on a number of islets located
in the maritime area in dispute between Nicaragua and Honduras and
does not look at the overall coastal relationship between both States
in the light of the alignment of their land boundary. Nicaragua
considers it appropriate to shortly recapitulate what was said in this
respect in the Memorial, in the light of the arguments presented in
the Counter-Memorial. Subsequently, this Chapter will assess the
Honduran analysis of the practice of third states and the
consequences of the presence of third states for the delimitation the
Court is requested to effect. On both points, the Counter-Memorial
only gives a partial rendering of the relevant facts, which lead to
unacceptable conclusions.
A. THEGENERAL ORIENT ATION OF THE COAST
3.3 In the Memorial Nicaragua submitted that the general orientation of
the mainland coasts forms one of the most relevant geographical
circumstances in establishing the course of the maritime boundary
25
between Nicaragua and Honduras • The method of delimitation
25
NM, Vol. 1.p. 14, para. 31.
27 proposed by Nicaragua is a bisector between the general directions
26
of the relevant coasts of Nicaragua and Honduras.
3.4 Honduras has not rejected the description of the relevant coasts that
has been provided by Nicaragua. However, Honduras considers that
the method of delimitation proposed by Nicaragua is completely
impractical because of the presence of a number of islets to the south
27
of the bisector line proposed b28Nicaragua. Honduras asserts that it
has a title to these islets. As will be argued in Chapter VI,
Honduras has not established the existence of a Honduran title to
these islets. In any case, Honduras herself considers that her daim in29
respect of the maritime boundary is based on her mainland coast.
The Counter-Memorial states in this respect:
"Honduras does not use these islands as
basepoints, and daims neither shelf nor
economie zone for the islands as such. Its claim
is based on its mainland and the lon§ history of
an established, accepted boundary". 3
3.5 Nicaragua respectfully submits that the recognition by both States
that the mainland coasts are of decisive importance for the maritime
delimitation and that the islets in the area of relevance for the
delimitation have to be disregarded in this respect has to be reflected
in the method the Court will adopt to delimit the maritime boundary
between both States. This is achieved by the method of delimitation
proposed by Nicaragua, but not by the method proposed by
Honduras.
8. THE GENERAL ORIENTATION OF THE LAND 80UNDARY
3.6 Honduras attributes particular significance to the fact that the terminal
point of the land boundary between Nicaragua and Honduras is
situated approximately at the parallel of 15° N. Honduras considers
that already in colonial times this terminal point was projected
seaward along a parallel to give her title to both insular and maritime
areas to the north of this paraJJe(" That this assertion is unfounded in
fact and law is further addressed in Chapters IV and VII of the Reply.
26NM, Vol. 1,pp. 95-1 14, paras. 20-61; p. 167, Submissions; NR, Chap. IX.
27HCM, Vol. 1,para. 7.28.
2xSee e.g. HCM, Vol. 1, para. 2.5.
29
30See HCM, Vol. 1,para. 7.28.
31HCM, Vol. 1,para. 7.28.
See e.g. HCM, Vol. 1, para. 5.35.
283.7 ln stating that the 1906 Arbitral Award did not recognize any degree
of Nicaraguan sovereignty in relation to land territory (territorial
32
areas) north of Cape Gracias a Dios, Honduras closes her eyes to
the fact that the land boundary in the River Coco in a number of
places meanders north of the parallel of 15° N. There is no indication
that in establishing the land boundary this parallel was taken into
account in any way. 33
3.8 The general direction of the River Coco or the land boundary in
general clearly have no relationship to the parallel of 15° N. The
only straight line segment of the land boundary between Nicaragua
and Honduras is located in the Pacifie region. This line, which is not
a meridian or a parallellies south of 13° N. The general direction of
the land boundary between Nicaragua and Honduras along the River
Coco can be established by drawing a straight line between the point
at which the River Coco becomes the boundary and the point at
which it flows into the Caribbean Sea. Such a straight line
approximately has a northeasterly bearing? 4
3.9 Honduras also refuses to recognize another characteristic of the land
boundary, namely that it terminates at a ca5e at which the mainland
coast dramatically changes direction? This characteristic is taken
into account by the method of delimitation proposed by Nicaragua. 36
The method of delimitation proposed by Honduras does not have
any relation to this characteristic of the land boundary.
C. THESPECIAL CHARACTER OF THERIVERCoco
3.10 Nicaragua and Honduras agree that the mouth of the River Coco is
37
shifting seawards due to a continuous process of accretion. They
also agree that this implies that the terminal point of the land
38
boundary does not remain fixed at the same point. Finally,
Nicaragua and Honduras both accept that the land boundary in the
River Coco is formed by the thalweg. 39 This implies that the
32
33HCM, Vol. 1, para. 1.18.
See further NR, Vol. 1,Chap. IV.
34For a map depicting this general direction of the land boundary see NR, Vol. II, Figure II.
35NM, Vol. 1, paras. 31-32.
36NM, Vol. 1, paras. 21-25 and 23-30.
37NM, Vol. 1, para. 20;.HCM, Vol. 1, p. 144, para. 7.39.
38
39NM, Vol. 1,para. 19;.HCM, p. 144, para. 7.40.
NM, Vol. 1, para. 9, HCM, Vol. 1,, para. 7.41. The Arbitral Award of the King of Spain
of1906 defined the boundary as:
"Starting from the mouth of the Segovia or Coco, the frontier line will follow the
vaguada or thalweg of the river upstream, without interruption until it reaches the
29 terminal point of the land boundary is also located in the thalweg of
the River Coco at the point the river reaches the sea. Nicaragua
submits that Honduras has not correctly applied the conclusions that
have to be drawn from these findings in establishing the starting
point of the territorial sea boundary between Nicaragua and
Honduras. This issue will be further addressed in Chapter X of the
Reply.
D. THE NICARAGUAN RISE
3.11 The Nicaraguan Rise is described in considerable detail in the
Memorial. 40 Nicaragua and Honduras agree on the geophysical
description of the Nicaraguan Rise. However, they differ over the
relevance of this feature for the delimitation of the single maritime
boundary. This point will be further discussed in Chapter IX of the
Reply.
E.THE ISLETS AND ROCKS SITUATED IN THE AREA TO BE DELIMITED
3.12 Honduras submits that Nicaragua ignores that there are four
41
"important islands" to the north of the parallel of 15° N. As will be
argued in the present Reply, Nicaragua has not ignored the existence
of these islands, but does reach different conclusions in respect of
the title to these islands. As far as the rote of the islets and rocks to
the north of the parallel 15° N in a delimitation is concerned, there
does not seem to be a fundamental difference between Nicaragua
and Honduras. Nicaragua considers that ali of the islands in the area
of relevance for the delimitation should not be taken into
consideration in establishing a maritime boundary, and so does, in
the final analysis, Honduras. The Counter-Memorial states that
Honduras does not use these islets as basepoints. Instead, her claim
is based on her mainland and a supposedly established boundary. 42
3.13 Honduras repeatedly expresses surprise at the fact that Nicaragua
refers to the presence of "islets and rocks" to describe the islands in
43
the area of relevance for the delimitation. A comparison of the size
of these cays, which Honduras considers of singular importance, and
the largest island in the area of relevance for the delimitation,
place of its confluence with the Poteca or Bodega [..(I.C.JReports 1960, p.
40 203).
41SeeNM, Vol.l,paras.42-45and 14-21.
HCM, Vol. 1, para. 2.3.
42HCM, Vol. 1,para. 7.28.
43See e.g. HCM, Vol. 1, para 1.23 and para. 2.6.
30 indicates that this surprise is misplaced. The four cays to which
44
Honduras refers have the following size:
a. Savanna Cay: 0.022 km 2 ;
2
b. Bobel Cay: 0.029 km ;
2
c. Port Royal Cay: 0.0028 km and ;
2 45
d. South Cay: 0.019 km •
On the other band, the largest island in the area of relevance for the
delimitation between Nicaragua and Honduras is the Nicaraguan
island of Miskito Cay, which has a total area of more than 21.6
2 46
km . The Morrison Dennis Cays, to the northwest of Miskito Cay,
have a total area of 1.0km 2•47
3.14 The reference to rocks by Nicaragua is also warranted by the fact
that large areas off the mainland coasts of Nicaragua and Honduras
are covered by shallow waters in which coral reefs abound.
3.15 Definitions of islets clearly indicate that it is fullyjustified to refer to
the four above mentioned cays as 'islets'. A number of writers make
reference to a definition of the International Hydrographie Bureau
referring to a 'small islet' as being between 1 and 10 square
48
kilometers in size. Hodgson defines an 'islet' as having an area of
between 0.001 square miles (0.00259 square kilometers) and 1
49
square mile (2.59 kilometers).
44
45See e.g. HCM, Vol. 1,, para. 2.3.
Figures provided by the United Kingdom Hydrographie Office, Law of the Sea Division;
see NR, Vol. Il, Figure III. A comparison of the geographical coordinates which Honduras
provides for South Cay (HCM, Vol. 1, p. 14, footnote 3) and a nautical chart (chart 1218 of
the United Kingdom Hydrographie Office) shows that on the latter South Cay is at the
position of Alargado Ca y.
46 This also answers the Honduran observation (HCM, Vol. 1, p. 7, footnote 15) that
Nicaragua refers to certain of the islands under her sovereignty as 'islands'.
47
Figures provided by the United Kingdom Hydrographie Office, Law of the Sea Division;
48e NR, Vol. Il, Figure IV.
See e.g. E.D. Brown, Sea-bed Energy and Minerais: The International Legal Regime,
Dordrecht, 1992, p. 38; D. C. Kapoor and A.J. Kerr, A Guide to Maritime Boundary
Delimitation, Toronto, 1986, p. 68; M.P. Strohl, The International Law of Bays, The Hague,
4963, p. 69, footnote 6.
R.D. Hodgson, Islands: Normal and Special Circumstances (Department of State,
Research Study RGES- 3; December 10, 1973), p. 17.
313.16 A final example of use of the term 'islet' is provided by a decision of
the Court. In the Libya/Malta Continental Shelf 50 case, the Court
addressed the significance of the 'islet of Fi1fla' • Filfla, measuring
Jess than 0.1 km 2, is larger than the four above mentioned cays.
3.17 Honduras also asserts that Nicaragua appears not to appreciate that
sorne of the islets located between the maritime boundaries proposed
by Nicaragua and Honduras are inhabited. The relevance of
habitation of the islets for the issue of title will be further discussed
in Chapter VI. At this point it suffices to note that the cays, due to
their size and other conditions can not be permanently inhabited, but
at best are used as a shelter by fishermen in the fishing season. The
islets, which are only a couple of feet above sea level, are complete) y
51
washed over by the sea in heavy weather. Moreover, the islets are
located in an area that is regularly hit by hurricanes. This makes
them hardly fit for permanent habitation. As is pointed out by
Honduras, two cays that earlier were above water at high tide are
52
now both submerged. This further illustrates the instability of these
islets and indicates that they should in no case provide the basis for
the delimitation of a maritime boundary that is located in an area
which is dominated by the mainland coasts of Nicaragua and
Honduras.
3.18 Nicaragua does not consider that it is it necessary to establish if there
are any islands in the area of relevance for the delimitation that fall
under the definition of rocks of article 121(3) of the United Nations
Convention on the Law of the Sea. Nicaragua and Honduras agree
that the delimitation has to be effected on the basis of the mainland
coasts. 53
3.19 Although Honduras suggests that Nicaragua has limited knowledge
of the islets off the mainland coasts of both States, 54 the Counter
Memorial shows that Honduras herself is not weil acquainted with
the geography of the area. For instance, Honduras points out that
Serranilla Cay is actually a bank and not a cay as Nicaragua submits
in the Memorial. 55 However, there are a number of cays on the
Serranilla Bank, and reference is made to either Serranilla Cay or
Serranilla Cays. As a matter of fact, this practice has also been
50
I.C.J. Reports 1985, p. 48, para. 64.
51See e.g. Sailing Directions (Enroute), Caribbean Sea, Vol. II, Defense Mapping Agency,
5'hEdition (1995), p. 116, para. 6.02. Reproduced in NR, Vol. II, Anne x 2. This part of the
document has not been reproùuced in HCM, Annex 230.
52
53HCM, p. 14, footnote 2.
54See further infra Chapter IX and HCM, Vol. 1, para. 7.28.
See for instance HCM, Vol. 1, paras. 2.7 and 2.8.
55HCM, Vol. 1, p. 17, para. 2.7. Reference to Serranilla Cay is, for instance, made in NM,
Vol. 1, p. 166.
32 56
followed in Honduran diplomatie notes. Another example of the
limited knowledge of the geography of the area in dispute is
provided by the Honduran Constitution of 1982. The Constitution
does not refer to any of the four cays which Honduras in its Counter
Memorial describes as "important islands", but only to Media Luna
57 58
Cay, which according to Honduras is now submerged. The only
other explanation for this omission, apart from a limited knowledge
of the geography of the area, would be that in 1982 Honduras did not
consider having a title to these islets.
3.20 A final example ofHonduras' lack ofknowledge of the geography of
the Caribbean coast is a reference to Savanna Cay in footnote 19 at
page 18 of the Counter-Memorial. Honduras suggests that this
concems om~ of the islets in dispute in the present proceedings. Thus
Honduras fails to recognize that there is another Savanna Cay
opposite the Laguna de Perlas in Nicaragua. The source to which
Honduras refers leaves little doubt that this latter cay was
concemed. 59If the reference were to concem the other Savanna Cay,
north of the parallel of 15° N, this still would not be helpful to
Honduras. The source Honduras quotes indicates that documents of
title were drawn up for a number of cays in 1917, including Savanna
Ca y. At the time of publication of the source concemed (1973), these
documents were included in the Libro de Pro~iedad dels
Departamento de Zelaya in Bluefields in Nicaragua. 6 Registration
of private ownership of a piece of land by aState clearly is an act à
titre de souverain.
56
See e.g. the Honduran note N. 408-DA of 28 June 1984 (reproduced in HCM, Vol. 2,
Annex 37) and the Honduran note of 5 October 1984 (reproduced in HCM, Vol. 2, Annex
38).
57Article 10of the 1982 Constitution provides:
"lt belongs to Honduras the territories located on the mainland within its territorial
limits, internai waters and islands, islets and cays in the Gulf of Fonseca, that
historically, geographically and legally belong to her, as weil as the Bay Islands,
Swan Islands, also known as Santanilla or Santillana, Virillos, Seal or foca (or
Becerro), Caratasca, Cajones or Hobbies, Mayores de Cabo Falso, Cocorocuma,
Palo de Campeche, Los Bajos Pichones, Media Luna, Gorda and los Bancos
Salmedina, Providencia, De Coral, Cabo Falso, Rosalinda and Serranilla, and ail
other located in the Atlantic that historically, geographically, and legally belong to
58 her".
HCM, p. 14,footnote 2.
59See B. Nietschmann, Between Land and Water, New York, 1973, pp. 118 and 119 and
figure 26. References to a number of offshore cays, ali of which are situated opposite
Laguna thePerlas.
60 B. Nietschmann, Between Land and Water, New York, 1973, pp. 118 and 119 and
footnote11.
333.21 The discussion in this section shows that Nicaragua does appreciate
the true significance of the islets, rocks and reefs in the area of
relevance for the delimitation. Ail information on the islets indicates
that they are minor insular features that do not have the importance
that Honduras attributes to them. Even Honduras herself does not
attribute any weight to the islets in explaining the choice for a
maritime boundary in the Counter-Memoria1. 61 The suggestion that
Nicaragua has a limited knowledge of the geography of the area is
not borne out by the facts either. The examples provided above
indicate rather that Honduras herself is not familiar with the
geography of the Caribbean Sea.
III. The Legal Context - The Relevance of Delimitation Agreements in
the Region and Elsewhere
3.22 Honduras asserts that there has been a strategie decision by
Nicaragua to ignore (or minimize the importance of) treaties which
have been adopted between States in the region. 62 Honduras
maintains that three treaties are particularly relevant in this context:
(a) the 1928 Nicaragua/Colombia Treaty;
(b) the 1986 Honduras/Colombia Treaty; and
63
(c) the 1993 Jamaica/Colombia Treaty.
It can be noted that a common feature of these treaties is that
Colombia is one of the parties. Maritime delimitation is a part of the
case between Nicaragua and Colombia before this Court.
3.23 Honduras submits that these bilateral treaties are relevant for at !east
two reasons. First, Honduras holds that the Court is entitled to
presume that the provisions of these treaties are reasonable.
Secondly, according to Honduras, these treaties, and other treaties in
the Caribbean region and elsewhere show that the use of parallels of
latitude and meridians of longitude to delimit maritime boundaries is
widely relied upon. 64 Honduras contends that the Court and other
international tribunals have confirmed its views on the significance
61
62See HCM, Vol. 1,p. 141, para. 7.28.
63HCM, Vol. 1,p. 20, para. 2.13.
64HCM, Vol. 1,p. 21, para. 2.14.
HCM, Vol. 1, p. 23, para. 2.20.
34 of delimitation agreements "involving the Parties to the dispute or
neighboring States" .5
3.24 The fact that the Memorial of Nicaragua does not refer in detail to
the agreements which Honduras considers of particular relevance is
not inspired by the motives suggested by Honduras. Nicaragua opted
for this approach because these treaties do not have the relevance
that Honduras seeks to ascribe to them. As will be argued below,
Honduras in her Counter-Memorial has given a partial rendering of
the three treaties Honduras considers particularly relevant. Likewise,
Honduras gives an incomplete picture of the maritime delimitation
agreements that have been concluded in the Caribbean region.
Finally, an analysis of the pronouncements of this Court and
international tribunals points out that these do not support the
position of Honduras.
A. THETREATIES HONDURAC SONSIDERO SFPARTICULAIR MPORTANCE
3.25 Honduras considers a 1928 Treaty between Nicaragua and Colombia 66
as "one of the most relevant circumstances in the present case".
Honduras seems to base this conclusion on two considerations. First,
she maintains that Nicaragua and Colombia have accepted a line, the
meridian of 82° W, as a maritime boundary. Secondly, Honduras
suggests that this line stops at the parallel of 15° N. 67 The
implication of these assumptions seems to be, according to
Honduras, that Nicaragua has accepted that the point located at 15°
N and 82° W forms the tri-junction point of the maritime boundaries
68
of Nicaragua, Colombia and Honduras. The validity and
interpretation of the 1928 Treaty is a part of the case between
Nicaragua and Colombia before this Court. 69
3.26 As far as the acceptance of the meridian of 82° W as a maritime
boundary by Nicaragua is concerned, even the Counter-Memorial
expresses doubt in this respect, observing that:
"[The 1928] agreement established the 82nd
meridian as the limit of sovereignty between
Nicaraguan and Colombian possessions. Since
the entry into force of this treaty, the 82nd
65HCM, Vol. 1, p. 20, para. 2.13; see also pp. 141-142, paras. 7.29-7.30.
66HCM, Vol. 1, para. 4.22. The Treaty is reproduced in HCM, Vol. 2, Annex 35.
67HCM, Vol. 1, para. 4.22.
68
69HCM, Vol. 1,para. 4.22.
Territorial and Maritime Dispute (Nicaragua v. Colombia).
35 meridian has been regarded by Colombia as a
70
maritime boundary."
3.27 In another part of the Counter-Memorial, Honduras does claim that
the 82nd meridian was regarded as the maritime boundary by
Nicaragua and Colombia for more than 50 years. According to
Honduras, it was only in 1980, with the new Sandinista government,
that Nicaragua rejected this. 71 No proof is offered by Honduras that
Nicaragua ever accepted the 82ndmeridian as a maritime boundary.
No explanation is offered on how it was possible for two States in
1928 to be fixing maritime boundaries located over 80 miles distant
from their shores. The assertion that Nicaragua accepted the
meridian for more than 50 years as a maritime boundary only seems
intended to suggest, as is also done in a number of other instances,
that there only was a change in the Nicaraguan position on maritime
delimitation in the Caribbean Sea after the change of government in
Nicaragua in 1979. However, there is abundant evidence that this is
not the case.
3.28 At the end of the 1960s and the beginning of the 1970s Nicaragua
and Colombia exchanged a number of diplomatie notes that also
addressed the status of the meridian of 82° W. A diplomatie note of
Colombia of 4 June 1969 indicated that this meridian limited the
continental shelf of Nicaragua. 72 This daim was immediately
rejected by Nicaragua in a note of 12 June 1969. 73Another example
is a diplomatie note of 1972 addressed to the Colombian Minister of
Foreign Affairs, in which Nicaragua stated that:
"Nicaragua cannot accept the criteria upheld by
the enlightened Government of Colombia on
the order that Meridian 82 of Greenwich, which
is referred to in the Legislative Decree of 5
April 1930 and the Protocol of Exchange of
Ratifications of the Barcenas Meneses-Esguerra
Treaty, constitutes the boundary line of the
respective maritime areas or zones because said
assertion is an interpretation that does not
coïncide with the letter and spirit in which it
711HCM, Vol. 1, para. 4.22 (emphasis added, footnotes omitted). The Nicaraguan
instrument of ratification contained an understanding that the Archipelago of San Andres
and Providencia mentioned in article of the Treaty did not extend to the west of the
meridian of 82° W (NR, Vol. Il, Annex 3. This understanding was affirmed in the Act of
Exchange of Ratifications NR, Vol. II, Annex 4.
71HCM, Vol. 1, para. 2.15.
72
73Note No. 092 of 4 June 1969 (see NR, Vol. Il Anne x 5).
Note No. 00021 of 12 June 1969 (see NR, Vol. II Annex 6).
36 was written, which was clearly and decisively
to express that the Archipelago of San Andres
and Providencia mentioned in the first
provision of the Treaty, do not extend West
beyond said Meridian." 74
3.29 A note of the Minister of Foreign Affairs of Costa Rica to the
Ambassador of Nicaragua to Costa Rica indicates that the other
Central American States were aware of the dispute between
Nicaragua and Colombia over this matter. 75
3.30 These facts indicate that Nicaragua never accepted the meridian of
82° W as a maritime boundary. But rather emphatically and publicly
rejected it the first time it was claimed by Colombia. Even more
importantly, they point to the fact that it is difficult for Honduras to
maintain that she was not aware of this. A Honduran Memorandum
of 11 July 1980, 76 which makes reference to the "banks of Quita
Suefio [sic], in Nicaraguan waters", confirms that Honduras at that
time did not consider that the meridian of 82° W constituted a
maritime boundary. The bank of Quitasuefio is situated to the east of
the meridian of 82° W. In the light of these circumstances, it is
curious that Honduras relied on the meridian of 82° Win connection
with the conclusion of a treaty with Colombia on maritime
delimitation in 1986 and now considers that the 1986 Treaty is of
77
concern for the present proceedings.
3.31 As was noted above, Honduras assumes that the line used in
connection with the 1928 Treaty between Nicaragua and Colombia
terminates at the parallelof 15° N. Otherwise, it cannot be explained
how Colombia and Honduras could adopt the intersection of this
parallel with the meridian of 82° W as the starting point of their
maritime boundary in the 1986 Treaty.
3.32 The text of the 1928 Treaty bas no reference to the meridian of 82°
W or to any parallel to the North. The instrument of ratification of
Nicaragua ïndicated that she was ratifying the Treaty in the
understanding that the San Andres Archipelago did not go further
West than the 82 Meridian. There is nothing in the text of the 1928
Treaty or in the Nicaraguan instrument of ratification of it to suggest
that Nicaragua intended the line of allocation of islands running
along the meridian of 82° W to extend to or stop at the parallel of
74Note IEO. 053 of 7 October 1972 (see NR, Vol. II Annex 7).
75Note No. 68.682- PE of 18 October 1972 (see NR, Vol. II Annex 8).
76Reproduced in HCM, Vol. 2, Annex 155.
77
HCM, Vol. 1, p. 65, para. 4.22.
37 78
15° N. Obviously, Colombia and Honduras cannot bind Nicaragua
to an interpretation of Nicaragua's instrument of ratification of a
treaty by concluding a later bilateral treaty.
3.33 The 1986 delimitation agreement between Colombia and Honduras
is the second agreement Honduras considers of particular relevance
79
for the present case. According to Honduras:
"... the significance of the treaty lies in its
recognition by Colombia that the maritime area
to the north of the 15 1h parallel forms part of
Honduras, and that the 82nct meridian is th80
appropriate terminus for the delimitation."
lt remains unclear on what grounds Honduras considers that this
treaty has any legal consequences for Nicaragua. As is recognized by
81
Honduras, Nicaragua already in 1986 protested the conclusion of
this treaty because Nicaragua considered this to be an encroachment
82
on her maritime areas in the Caribbean Sea. 83Nicaragua has
protested the Treaty a number of times after 1986. In view of the
imminent ratification of the 1986 Treaty by Honduras, Nicaragua
brought a case against Honduras before the Central American Court
of Justice on 29 November 1999. Nicaragua requested interim
measures of protection in order to stop the process of ratification by
Honduras. The Court Ordered Honduras to suspend the process of
ratification of the Treaty it had signed with Colombia in 1986. This
Order was ignored by Honduras who proceeded to ratify the Treaty.
On the merits, Nicaragua inter alia requested the Court to declare
the absolute nullity of the process of approval and ratification of the
1986 Treaty by Honduras. In its judgment of 27 November 2001, the
Central American Court of Justice held on this point that the
ratification of the 1986 Treaty by Honduras had infringed the
Protocol of Tegucigalpa to the Charter of the Organization of
Central American States. Furthermore, the Central American Court
determined that there existed a Central American Territorial
Patrimony that consisted of the territories claimed by the member
States. This Judgment, therefore, makes clear that there is no
7gReproduced in NR, Vol. II, Annex 3.
79The text of this agreement is reproduced in NM, Vol. 2, Annex 6.
xoHCM, Vol. 1,para. 2.17 (emphasis added).
X2HCM, Vol. 1,para. 7.36.
g Note AJ N. 080 of 8 September 1986 (reproduced in NM, Vol. 2, Annex 70).
x3The Memorial sets out in detail the Nicaraguan protests against the 1986 Agreement
(NM, Vol. I, pp. 58-61, paras. 62-69).
38 regional acceptance of the 82° meridian or the 15° par84lel as
maritime boundaries of Nicaragua in the Caribbean Sea.
3.34 Honduras fails to explain how a treaty that bas been protested by a
third State upon its conclusion and which State bas continued to do
so afterwards, could have any legal effects for that third State.
Moreover, already before 1986 Honduras was weil aware of the fact
that Nicaragua did not accept that the meridian of 82° W and the
parallel of 15° N bad any relevance for the delimitation of
85
Nicaragua's maritime zones.
3.35 The final treaty considered of particular relevance b~ Honduras is an
6
agreement of 1993 between Colombia and Jamaica. Again, this is a
treaty to which Colombia is one of the parties and which was
concluded well after the dispute between Nicaragua and Honduras
over their maritime boundary arose. This treaty is concerned with
insular territories and maritime areas which are part of the case
between Nicaragua and Colombia before this Court. Nicaragua bas
repeatedly indicated that she rejects treaties concluded by Colombia
affecting ber sovereignty and jurisdiction. For instance, a diplomatie
note of 23 August 1995 from the Foreign Minister of Nicaragua to
the Foreign Minister of Colombia states that:
"To this effect, the Government of Nicaragua
categorically reiterates its rejection of and
refusai to acknowledge the validity of any
Treaty signed by Colombia with third States
that affects its sovereignty and territorial
integrity by attempting to place territorial and
jurisdictional boundaries that do not correspond
with those conferred by International Law". 87
Otherwise, this agreement bas no relevance for the present
proceedings. The maritime boundary proposed by Nicaragua does not
84
See Demanda incoada por el Estado de Nicaragua en contra del Estado de Honduras
por violacion de normativay principios comunitarios centroamericanos, contenidos en
diversos instrumentos jurîdicos, asî como que se determine la responsabilidad
internacional de Honduras y las reparaciones a que esta obligada ante el Estado de
Nicaragua y el sistema institucional centroamericano por haber ratificado el Tratado de
Delimitacion Marîtima entre la Republica de Honduras y la Republica de Colombia,
denominado Tratado LOpez-Ramîrez, of 27 Nov. 2002. The Orders and Judgments can also
85 seenin the website ofthe Central American Court of Justice: www.ccj.org.ni.
See supra para. 3.30 and NM, Vol. 1, p. 42, paras. 13 and 14.
86Reproduced in HCM, Vol. 2, Annex Il.
87Reproduced at NR, Vol. II, Annex 9. Similar statements are, for instance, contained in a
diplomatie noteof 19 May 1993 from the Foreign Minister of Nicaragua to the Foreign
Ministerof Colombia (reproduced at NR, Vol. II, Annex 10).
39 imply an encroachment on the right to maritime zones Jamaica may
have to the north of the maritime boundary Jamaica agreed with
88
Colombia in 1993.
B. ÜTHER TREATIES REFERRED TO IN THE TEXT OF THE COUNTER-MEMORIAL
3.36 In the concluding chapter of the Counter-Memorial, reference is
made to two further agreements that allegedly are of particular
relevance for the present proceedings. This concerns an agreement
between the United States and Colombia of 1972 and an agreement
of 2001 between Honduras and the United Kingdom. 89 Although
these treaties are mentioned in passing in the Counter-Memorial,
their"relevance" for the present proceedings is never explained by
Honduras. This suggests that their inclusion in the concluding
Chapter is only intended to add sorne weight to the Honduran
assertions in respect of the relevance of agreements of third States
vis-à-vis Nicaragua.
3.37 Nicaragua does not accept that these treaties have any relevance for
the present proceedings. The Agreement between Honduras and the
United Kingdom establishes a maritime boundary that is weil to the
north of the maritime boundary submitted by Nicaragua in the
present proceedings. The Treaty between the United States and
Colombia of 1972 is not concerned with maritime delimitation but
concerns the status of Quitasuefio, Roncador and Serrana. The status
of these features, which are located to the south of the maritime
boundary proposed by Honduras in the present proceedings, is a part
of the case between Nicaragua and Colombia before this Court.
C. DELIMITATION AGREEMENTS IN THE CARIBBEAN REGION AND ELSEWHERE
3.38 Honduras refers to the existence of a number of delimitation
agreements, apart from the agreements discussed above, that bear
witness to the fact that the use of meridians and parallels is
widespread. Nicaragua considers the analysis of this practice is
flawed for a number of reasons.
3.39 In her analysis, Honduras limits herself to c1tmg a number of
delimitation agreements. Honduras does not in any way assess if the
geography of these delimitations bears any resemblance to the
xxSee further infra Chapter X.
XYHCM, Vol. 1, p. 149, para. 8.1O.The text of these agreements is reproduced in HCM,
Vol. 2, Annexes 10 and 14.
40 geography of the coasts of Nicaragua and Honduras. Delimitation
methods that have been applied in a specifie geographical context
can only have 0elevance for another case if the geography is
comparableY This is not the case for the examples cited by
Honduras in footnote 38 at pages 23 and 24 of volume 1 of the
Counter-Memorial. None of the agreements invoked by Honduras is
characterized by a geography that is similar to the one set out in
Section A of this chapter.
3.40 Two examples may suffice to illustrate that the agreements invoked
by Honduras do not support the use of a parallel to delimit the
maritime boundary between Nicaragua and Honduras. The
Agreement between Portugal and Spain on the delimitation of the
continental shelf of 12 February 1976 delimits the continental shelf
off the two land boundaries between the two States by respective]y a
meridian and a parallel. In both cases, the relevant coasts near the
land boundary are comparatively straight, showing no similarity with
the coasts of Nicaragua and Honduras near the terminal point of their
land boundary. 91 In the geographical situation between Spain and
Portugal, use of a meridian and a parallel cornes close to using a
bisector of the general direction of the coast. Another example is
provided by the Agreement between the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government
of Ireland concerning the delimitation of zones of continental shelf
between the two States of 7 November 1988. This Agreement
delimits the continental shelf of both States in two areas. This is not
done by using one meridian or parallel, but by using a large number
of such lines. A comparison between the two boundary lines and
equidistance lines shows that they generally have the same direction
and lead to similar results.92 An analysis of this agreement has noted
that different methods were used in different sectors in order to
achieve an equitable result. The methods considered included 93
equidistance., modified equidistance and bisecting coastal fronts.
Again, an example invoked by Honduras on closer consideration is
supportive of the method of delimitation proposed by Nicaragua and
not that of Honduras.
90
The Memorial does explain how the bisector proposed by Nicaragua takes into account
the relevant coastal geography (NM, Vol. 1, p. 96, paras. 23-25). In respect of the examples
of the use of the bisector method in State practice provided by Nicaragua (NM, Vol. 1, pp.
111-114, paras.50-60), it can be noted that the bisector method by definition reflects the
relevant coastal geography, in contrast to meridians or parallels.
91For a depiction of these continental shelf boundaries see NR, Vol. Il, Figure V.
92For a depiction of these continental shelf boundaries see NR, Vol. Il, Figure VI.
93
J.I. Chamey and L.M. Alexander, International Maritime Boundaries, Dordrecht, 1993,
p. 1770.
413.41 Honduras suggests that meridians and parallels have been widely
used in the Caribbean Sea, 94 but at the same time disregards the fact
that this method of delimitation has not been used (exclusively) in a
large majority of maritime delimitations in the Caribbean Sea. This
is already evident from Plate 5 between pages 22 and 23 of Volume
1 of the Honduran Counter-Memorial. For six boundaries portrayed
on this map other methods of delimitation than parallels and
meridians have been used for ali or a part of their course. In the
Caribbean region, the number of delimitation agreements not using
parallels and meridians for ali or part of their course is even larger,
totaling a number of 23 agreements (including the six boundaries
95
referred to above). Fifteen agreements do not use parallels or
94
95HCM, Vol. 1, p. 23, para. 2.20.
This concerns the following agreements: Agreement by Exchange of Notes between the
Republic of Cuba and the United States of Mexico Concerning the Delimitation of Sea
Space of 26 July 1976 (1390 UNTS, p. 49); Agreement between the Republic of Haïti and
the Republic of Cuba Regarding the Delimitation of Maritime Boundaries between the Two
States of 27 October 1977 (J.I. Charney and LM. Alexander, International Maritime
Boundaries, Dordrecht, 1993, p. 560); Agreement on the Delimitation of Maritime
Boundaries between Colombia and Haïti of 17 February 1978 (ibid., p. 500); Treaty on the
Delimitation of Marine and Submarine Areas Between the Dominican Republic and the
Republic of Venezuela of 3 March 1979 (ibid., p. 588); Delimitation Treaty between the
Kingdom of the Netherlands and the Republic of Venezuela of 31 March 1978 (1140
UNTS, p. 323); Maritime Boundary Treaty between the United States of America and the
Republic of Venezuela of 28 March 1978 (1273 UNTS, p. 25); Agreement on Maritime
Delimitation between The Government of Dominica and the Government of the French
Republic of 7 September 1987 (1.1Charney and LM. Alexander, International Maritime
Boundaries, Dordrecht, 1993, p. 714); Treaty between His Majesty in Respect of the United
Kingdom and the President of the United States of Venezuela Relating to the Submarine
Areas of the Gulf Paria of 26 February 1942 (ibid., p. 651); Agreement between the
Republic of Trinidad and Tobago and the Republic of Venezuela on the Delimitation
Marine and Submarine Areas of 4 August 1989 (ibid., p. 670); Treaty between the Republic
of Trinidad and Tobago and the Republic of Venezuela on the Delimitation of Marine and
Submarine Areas of 18 April 1990 (1654 UNTS, p. 300); Delimitation Convention between
the French Republic and the Government of Saint Lucia of 4 March 1981 (1264 UNTS, p.
425); Treaty Between the Government of the United States of America and the Government
of the United Kingdom of Great Britain and Northern Ireland on the Delimitation in the
Caribbean of a Maritime Boundary Relating to Puerto Rico/U.S. Virgin Islands and the
British Virgin Islandsf 5 November 1993 (J.I. Charney and LM. Alexander, International
Maritime Boundaries, The Hague, 1998, p. 2167); Treaty Between the Government of the
United States of America and the Government of the United Kingdom of Great Britain and
Northern Ireland on the Delimitationin the Caribbean of a Maritime Boundary Relating to
the US Virgin Islands and Anguilla of 5 November 1993 (ibid., p. 2177); Agreement
between the Government of Jamaica and the Government of the Republic of Cuba on the
Delimitation of the Maritime Boundary between the Two States of 18 February 1994 (ibid.,
p. 2214); Agreement on Maritime Delimitation between the Government of the French
Republic and the Government of the United Kingdom concerning St. Martin and St.
Barthelemy, on the one hand, and Anguilla, on the otherof 27 June 1996 (ibid., p. 2224);
Agreement on Maritime Delimitation between the Government of the French Republic and
the Government of the United Kingdom concerning Guadeloupe and Montserrat of 27 June
1996 (ibid., p. 2232); Agreement between the Dominican Republic and the United
42 96
meridians at all. These are striking numbers if it is realized that
there is only one agreement in the Caribbean that only uses
97
meridians to delimit a maritime boundary. It has to be concluded
that the method of delimitation proposed by Honduras is completely
at variance with the regional practice in the Caribbean Sea.
3.42 The clearest illustration that meridians and parallels do not always
form an appropriate method of delimitation is provided by Honduras
herself. Honduras has to delimit her maritime zones with Belize and
Guatemala in the Gulf of Honduras. The use of one parallel or
meridian in this case is altogether impossible, as such !ines would
eut across the territory of the States concerned. The delimitation of
maritime zones between Belize and Guatemala has been considered
by a Panel of Facilitators of the Organization of American States. On
30 August 2002 the Panel presented proposais to the Secretary
General of the Organization. The Panel acknowledges the support
Honduras has given to the Process, in particular to the proposais on
maritime delimitation. 98 The proposai of the Panel results in a
maritime boundary between Honduras and Guatemala that
approximates a bisector between the mainland coasts of Honduras
and Belize. This boundary has approximately the same bearing as
the maritime boundary proposed by Nicaragua in the present
proceedings. 99 The proposais of the Panel state that the boundaries of
the territorial sea, continental shelf and exclusive economie zones of
Belize, Guatemala and Honduras:
Kingdom of Great Britain and Northem Ireland concerning the delimitation of the maritime
boundary between the Dominican Republic and the Turks and Caicos Islands of 2 August
9596 (ibid., p. 2242).
The 8 agreements that do use meridians or parallels to delimit part of a boundary are
those between Colombia and Costa Rica; Colombia and the Dominican Republic; Colombia
and Honduras; Colombia and Jamaica; Colombia and Panama; Venezuela and the
Netherlands; and two of the agreements between Venezuela and Trinidad and Tobago. I can
be noted thatali of these agreements concern either Colombia or Venezuela and another
State.
96The 8 agreements that do use meridians or parallels to delimit part of a boundary are
those between Colombia and Costa Rica; Colombia and the Dominican Republic; Colombia
and Honduras; Colombia and Jamaica; Colombia and Panama; Venezuela and the
Netherlands; and two of the agreements between Venezuela and Trinidad and Tobago. I can
be noted that alif these agreements concern either Colombia or Venezuela and another
State.
97 This concems the Delimitation Treaty between the Government of the Republic of
Venezuela and the Govemment of the French Republic of 17 July 1980 (J.I. Charney and
L.M. Alexander, International Maritime Boundaries, Dordrecht, 1993, p. 613).
98Proposais from the Facilitators, Presented to the Secretary General of the Organization of
American States, 30 August 2002 (available at <www.belize
guatemala.gov .bzlpressreleases/proposals/proposal_facilitator.html> ), section B.1.
99The Proposais from the Facilitators indicate (section B.3) that the maritime boundaries
they propose are indicated on indicative maps. The maps are available at
<http://www.belize-guatemala.gov.bz/press_releases/proposals/maps.html>.
43 "... shall be as provided for in their respective
national laws and in accordance with
international law, taking into account the
requirements of the 1982 UN Convention for
the Law of the Sea that areas over which States
have sovereign rights should be delimited 'by
agreement on the basis of international law ...
100
in order to achieve an equitable solution"'.
Due to the similar geographical situation, this proposai on maritime
delimitation between Honduras and Guatemala provides a precedent
for the delimitation between Nicaragua and Honduras.
3.43 In conclusion, the bilateral delimitation treaties invoked by
Honduras do not have the implications that Honduras attributes to
them. Honduras has produced no evidence that Nicaragua ever
considered that the 1928 Treaty between Nicaragua and Colombia
established a maritime boundary. Moreover, Honduras has neglected
that there is abundant practice of Nicaragua indicating her position
that this line is not a maritime boundary. Honduras also fails to
recognize that Nicaragua has consistently rejected the 1986 Treaty
on delimitation between Honduras and Colombia and the other
Colombian delimitation agreement invoked by Honduras.
Notwithstanding the continued Nicaraguan protests against these
treaties Honduras now argues that Nicaragua is bound by the terms
of the 1986 treaty and that the other treaties are of relevance for the
present proceedings.
3.44 Honduras has failed to show that there is a widespread practice
indicating that the use of meridians or parallels as a method of
delimitation is mandated in the present case. Honduras has not
produced any example in which such methods are applied in a
geographical situation similar to that between Nicaragua and
Honduras. To the contrary, examples invoked by Honduras support
the method proposed by Nicaragua. 101 A review of the practice in the
Caribbean region shows that an overwhelming majority of this
practice does not or does not exclusively use meridians or parallels
to establish boundaries.
100
101Proposais from the Facilitators, section B.2.
See supra for the discussion of the delimitation agreements between Portugal and Spain
and between the United Kingdom and Ireland.
44 D. THE VIEW OF THE COURT AND OTHER INTERNATIONAL TRIBUNALS
3.45 Honduras submits that over many years the Court and other tribunals
have made clear the relevance of maritime delimitation agreements
102
with, or between neighboring States. Nicaragua agrees with
Honduras that the Court has consistently considered the impact on
third States of a delimitation it is requested to make by the parties to
a case. However, Nicaragua rejects the analysis of the Court's
practice by Honduras and the conclusions Honduras reaches.
3.46 Honduras starts its analysis on this point with a reference to the
North Sea Continental Shelf cases. However, Honduras takes no
notice at ali of what actually was the substance of this case. This is
ali the more surprising because the case shows a striking similarity
with the present case as it is presented by Honduras.
3.47 Two of the parties to the proceedings in the North Sea Continental
Shelf cases,, the Netherlands and Denmark, had concluded a
delimitation agreement, using the method of equidistance to delimit
103
their continental shelf boundary in the North Sea. Moreover, each
of these States had concluded an agreement with the Federal
Republic of Germany delimiting part of the continental shelf
104
boundary by the same method of delimitation. Denmark and the
Netherlands also had concluded bilateral agreements with the United
Kingdom that delimited their continental shelf boundary in the North
Sea by equidistance in the area of relevance for the delimitation with
the Federal Republic. 105 Finally, the equidistance method was also
used in delimitation agreements in the North Sea between the United
Kingdom and Norway and between Denmark and Norway. 106
102HCM, Vol. 1,para. 7.29.
103Agreement between the Government of the Kingdom of the Netherlands and the
Government of the Kingdom of Denmark concerning the delimitation of the continental
shelf under the North Sea between the two countriesof 31 March 1966 (664 UNTS, p.
213).
104Agreement (with Protocol) between the Kingdom of Denmark and the Federal Republic
of Germany concerning the delimitation, in the coastal regions, of the continental shelf of
the North Sea of 9 June 1965 (570 UNTS, p. 91); and Treaty between the Kingdom of the
Netherlands and the Federal Republicf Germany concerning the lateral delimitation of the
105tinental shelf in the vicinityhe coast of 1 December 1964 (550 UNTS, p. 123).
Agreement between the Government of the United Kingdom of Great Britain and
Northern Ireland and the Government of the Kingdom of Denmark relating to the
delimitationof the continental she1f between the two countries of 3 March 1966 (592
UNTS, p. 209); and Agreement between the Government of the Kingdom of the
Netherlands and the Government of the United Kingdom of Great Britain and Northern
lreland relating to the delimitationhe continental shelf under the North Sea between the
two countries of 6 October 1965 (595 UNTS, p. 113).
106Agreement between Denmark and Norway relating to the delimitation of the continental
shelf of 8 December 1965 (634 UNTS, p. 71); and Agreement between the Government of
453.48 If the reasoning of Honduras in respect of the relevance of the
practice of third States would have been applied in the North Sea
Continental Shelf cases, the Court could not have found otherwise
than that the continental shelf boundaries between the three States
concerned had to be delimited by the method of equidistance. This
method had been used by the Federal Republic and the other States
concerned and also in the North Sea region at large. However, the
Court found that the equidistance method was not binding on the
107
Federal Republic.
3.49 The outcome of the North Sea Continental Shelf cases aIso indicates
that Honduras does not grasp the significance of the part of the
dispositif of the Judgment that is quoted in paragraph 7.29 of the
Counter-Memorial. This part of the dispositif provides that an
equitable delimitation requires account to be taken "of the effects,
actual or prospective, of any other continental s108f delimitations
between adjacent States in the same region". This does not imply
that aState has to accept delimitation agreements concluded by third
States, as Honduras apparently considers. Rather, it indicates, that in
delimiting their maritime boundaries, States have to take care not to
encroach upon areas in which third States also have an outstanding
daim. In concluding the 1986 delimitation agreement, Honduras and
Colombia have in fact disregarded this latter directive of the Court,
by not taking into account the legitimate claims of Nicaragua.
3.50 Honduras considers that the Guinea/Guinea Bissau arbitration also
supports her position concerning the relevance of the general pattern
of delimitation agreements in a region. 109 An analysis of this case
again points out that the Honduran position is not supported by the
facts. The Tribunal starts its reasoning from the proposition that it is
necessary to consider how existing and future delimitations fit in
with the general configuration of the West African coastline. 110The
consequences of this proposition are completely disregarded by
Honduras. Nowhere in the Counter-Memorial is it explained how the
delimitation line proposed by Honduras and her 1986 delimitation
agreement with Colombia lead to an equitable result for ali the States
in the Western Caribbean Sea in the light of the geographical
framework of the region.
the United Kingdom of Great Britain and Northern Ireland and the Government of the
Kingdom of Norway relating to the delimitation of the continental shelf between the two
countriesof 10 March 1965 (551 UNTS, p. 214).
107I.C.J. Reports 1969, p. 53, para. 101(A).
108I.C.J. Reports 1969, p. 54, para. 101(0)(1).
109HCM, Vol. 1, para. 7.30.
110Guinea/Guinea Bissau arbitration, Award of 14 February 1985, para. 109.
463.51 The delimitation effected by the Tribunal in the Guinea/Guinea
Bissau arbitration did not align the maritime boundary between the
two States with existing delimitation lines, but in large part is
formed by a perpendicular to the general direction of the West
African coast. This boundary has a completely different bearing
from the line that had been established unilaterally by Guinea as a
boundary with Sierra Leone. This latter line is a parallel of latitude,
which has no relationship to the general direction of the coast a111
defined by the Tribunal in the Guinea/Guinea Bissau arbitration.
If the Tribunal would have considered that this parallel had any
relevance for the delimitation between Guinea and Guinea-Bissau,
the boundary it had to establish would have followed a different
course.
112
3.52 Finally, Honduras invokes the Tunisia!Libya case. In this113se,
Nicaragua finds no objection with the Honduran conclusions. As
Honduras indicates, and is confirmed by a consistent case law,
delimitations with or between third States can weil limit or
circumscribe: the maritime area relevant to the dispute between the
parties.114The delimitation line proposed by Nicaragua does not lead
to encroachment of any maritime areas of third States, as will be
shown in more detail in Chapter X of this Reply.
3.53 The Judgments on the merits in the Case concerning Maritime
Delimitation and Territorial Questions between Qatar and Bahrain
and the Case concerning the Land and Maritime Boundary between
Cameroon and Nigeria confirm that the Court considers that it
cannot take a decision that might affect the rights of third States. In
both cases the Court indicated the direction of the boundary beyond
a defined 11oint, without indicating the terminal point of the
boundary. The method of delimitation proposed by Nicaragua
follows the same approach. 116
3.54 The above analysis indicates that the Court and other international
tribunats have dealt differently with delimitation agreements of third
States than Honduras suggests. The situation in the present
proceedings shows a striking resemblance with that of the North Sea
Continental Shelf cases as far as the practice of third States is
111See NR, Vol. Il, Figure VII.
112HCM, Vol. 1, para. 7.30.
113As a matter of fact the Memorial refers to the same paragraph of the Judgment in the
Tunisia!Libya case in this connection (NM, Vol. 1, p. 96, para. 26) as the Counter
Memorial.
114HCM, Vol. 1, para. 7.30.
115
116Judgment of 16 March 2001, para. 249; and Judgment of 10 October 2002, para. 307.
See further infra Chapter IX.
47concerned. The Court in those cases took exactly the opposite
approach as Honduras is now proposing. The other cases discussed
above also indicate that coastal geography is of primary importance
in the delimitation process. Agreements concluded by third States or
one of the States involved in a litigation cannot lead to ignoring the
geography of a case to the detriment of the other State involved.
48 CHAPTERIV
THE RELEVANCE OF THE UTI POSSIDETIS PRINCIPLE
1.Introduction
4.1 In dealing with a territorial dispute between successor States of
administrative or colonial entities, ali subject to the same sovereign,
it must be borne in mind that "the application of the principle of uti
possidetis resulted in administrative boundaries being transformed
into international frontiers in the full sense of the term," and that the
essence of the principle lies "in its primary aim of securing respect
for the territorial boundaries at the moment when independence is
achieved." 117The uti possidetis iuris "freezes the territorial title; it
stops the clock, but does not put back the bands," it is "the
photograph of the territorial situation" on the day of
independence. 118
A. THE POSITION OF HONDURAS
1
4.2 Aware that it is impossible to present the "15 h Paraliel" as an
"equitable" maritime boundary in accordance with the principles of
the International Law of the Sea and taking into account relevant 119
circumstances, particularly the geography of the area in dispute,
Honduras drastically reduces "the place and role of equity" which,
she affirms, "cannot override relevant legal circumstances ali of120
which (emphasis by Honduras) must be taken into account".
4.3 Among these circumstances Honduras cites, first of ali, the h121orical
basis of the title in the principle of uti possidetis iuris and then
attempts to show the existence of an effective boundary during the
colonial times that was inherited by Nicaragua and Honduras at
117
Frontier Dispute (Burkina Faso/Mali), Judgment of 22 December 1986, (ICJ Reports,
1986, p. 566, para. 23).
118lb., p. 568, para. 30.
119See supra Chap.III; infra Chap. IX, Section V.
120See HCM, paras. 4.118-4.27,7.1-7.3 and 8.4-8.5.
121
See HCM, para. 1.4, 1.8 and 1.9, which summarize the essence of the Honduran thesis,
developed in Chap. 5 (paras. 5.1-5.38).
49 independence in 1821, as successors of the provinces of the same
122
names belonging to the Audience of Guatemala.
4.4 According to Honduras 123the princip le of uti possidetis iuris applies
to both land and maritime areas; but beyond the territorial sea of the
mainland coast north of the 15 h Parallel, the uti possidetis iuris
would only be: 1) the basis for an initial title over the islands, Jater
confirmed and continued by events subsequent to 1821, which is the
124
relevant date ; and, 2) the basis for a presumed Honduran title over
the continental shelf and the exclusive economie zone north of the
15 h Parallel.
4.5 Honduras also accuses Nicaragua of a "selective use of historical
materi125 particularly in relation to the principle of uti possidetis
iuris" as, she asserts, Nicaragua has not invoked this principle in
her Memorial to support her claim 126in contrast to what she does in
127
her Application of 6 December 2001 against Colombia.
4.6 Moreover, according to Honduras one of the main, and concealed,
objectives of the Nicaraguan Memorial (NM) is to draw the Court into
disregarding the legal consequences 128 of the 1906 Arbitral Award and
the 1960 Judgment by the Court. Nicaragua, Honduras asserts, "has
chosen tore-open almost two centuries of settled history." 129
B. THE POSITION OF NICARAGUA
4.7 Nicaragua does not have the objectives that Honduras attributes to
her. Nicaragua does not "fear" the application of the Rrinciple of uti
0
possidetis iuris nor does she contradict herself. L Even more
m See HCM, paras. 5.4-5.18.
123See HCM, para. 5.38. See also HCM, para. 8.5.
124
125See HCM, paras. 5.19-5.37.
126See HCM, paras. 1.28-1.29.
See HCM, para. 5.3.
127This is reiterated in HCM, paras. 5.31 and 5.38.
12RSee HCM, paras. 1.15-1.18.
130See HCM, para. 2.12, infine.
See HCM, para. 5.31. Precisely because Nicaragua is coherent it does not invoke the
1821 uti possidetis iuris in the dispute of a maritime delimitation with Honduras while it
does - strongly - in the territorial and maritime dispute with Colombia, with regard to its
territorial dimension. This is worth pointing out because Honduras explicitly asserts,
incorrectly, that: "Nicaragua accepts the application of the uti possidetis iuris in its insular
and maritime dimension." The islands and cays in dispute in that case - contrary to this
case - have been specifically mentioned in documents of relevance for establishing a title
based on the principle of uti possidetis iuris.
50 emphatically Nicaragua does not attempt to avoid the legal
consequences of the Arbitral Award of 1906 or the 1960 Judgment
of the Court.
4.8 In sorne cases Honduras distorts reality and in other cases she
ignores it and deliberately confuses the questions of title of
acquisition over islands, those of sovereignty and maritime
131
jurisdiction, and that of delimitation between neighboring States.
4.9 The present chapter rebuts the Honduran assertions on the relevance
of the uti possidetis principle to the present case. With this objective,
an explanation is given of the effects the Award of the King of Spain
of 1906 might have on the delimitation of the maritime areas of
Nicaragua and Honduras in the Caribbean. This Award applied the
uti possidetis iuris of 1821 to the delimitation of the land boundary
but it is only relevant for the maritime delimitation in so far as the
outermost land boundary in the Atlantic Coast is the point of
departure for the maritime delimitation (Section Il).
4.10 Afterwards (Section Ill) a distinction is drawn between the
applicability of the principle of uti possidetis iuris to the islands and
cays in dispute (Section III, A) and the application of this principle
to the attribution of the maritime areas (Section Ill, B). The objective
of Nicaragua is to prove that the uti possidetis situation over the
islands in any case favors Nicaragua and that, on the other hand, it
would be art:ificialand bizarre to try to use this principle to directly
or indirectly attribute maritime areas or result in a delimitation of
these areas.
4.11 The conclusions will be formulated accordingly (Section IV).
II. The limited relevance of the Award of 1906
4.12 At no time has Nicaragua attempted, nor does she attempt to
overlook that the Arbitral Award 132the King of Spain in 1906 and
the 1960 Judgment of the Court are res iudicata or that the award
was based on the 1821 uti possidetis iuris. On the contrary
Nicaragua complied with the Judgment even if this involved
renouncing her own effectivités,and she accepted the findings of the
Royal Arbitrator that backed the Honduran claim over territories that
131See supra Chap. II, Section IV.
132See /CJ Reports, 1960, pp. 192 ff.
51 she did not, nor had ever, occupied. It so happens, however, that the
1906 Award defined what was exclusively a land boundary.
4.13 "The issue in question in this arbitration," the Award states
emphatically in the last of its whereas clauses (Resultandos), "is to
determine the boundary line of both Republics, between a point on
the Atlantic coast and the... Pass of Teotecacinte (Portillo de
Teotecacinte )."
4.14 Further on, in one of the Consideranda, it states that "having
adopted Cape Gracias a Dios as the common boundary between the
two disputing States on the Atlantic coast, proceeds to determine the
boundary between that point and the Pass of Teotecacinte (Portillo
de Teotecacinte)." (emphasis added)
4.15 Consequently, in the operative part, after stating that:
"The extreme common boundary point of the
coast of the Atlantic will be the mouth of the
Coco River, Segovia or Wanks, where it flows
out in the sea close to Cape Gracias a Dios,
taking as the mouth of the river that of its
principal arm between Hara and the Island of
San Pio where said cape is situated..."
the Award goes on to state:
"...Starting from the mouth of the Segovia or
Coco, the frontier line will follow the vaguada
or thalweg of the river upstream, without
interruption until it reaches the place of its
confluence with the Poteca or Bodega...'' 133
4.16 In spite of this clear wording, Honduras insists that Nicaragua
refuses to acknowledge the maritime and insular consequences of the
Royal Award of 1906,,_,.,lthough these consequences do not exist
outside Honduras' imagination. Clearly, the Award drew a boundary
with its back to the Ocean. The 1906 Award, the validity of which
was confirmed by the 1960 Court Judgment, has no reference to
what Honduras daims are attributions of maritime areas to one side
or the other; it does not even include territorial attributions of
islands, and Honduras' reasoning on this is pure speculation. The
assertions made by Honduras, specifically in paragraph 1.16 of her
Counter-Memorial, reveal a very loose interpretation given that the
133See /CJ Reports, 1960, pp. 202-203.
134See HCM, para. 5.6.
52 Award never indicates that the King of Spain reached his conclusion
"by reference to express consideration of matters pertaining to the
relevant territorialeas".
4.17 The only point in the 1906 Award that touches on mant1me
delimitation is, precisely, the one dealing with the end of the land
boundary on the coast that, as such, is an initial or starting point for
the maritime boundary. This point was duly appreciated and
135
considered by Nicaragua in her Memorial.
4.18 Regarding the islands, ail those attributed in the Award at the mouth
of the Coco River are river islands "leaving to Honduras the islets
and shoals existing within the said principal arm before reaching the
harbour bar .. No reference is made to islands, islets or shoals
beyond and east of the mouth of the Coco River.
4.19 The award adjudicated the islands on the Coco River whose course
follows part of the land boundary, not islands at sea beyond the
mouth of the river. And it did so precisely as a result of the
delimitation, not as a premise for, or independent of, the same. The
Award cannot be given unwarranted implications, and Honduras'
attempts to do so are simply, wishful thinking.
4.20 Thus, in paragraph 5.9 of the Counter-Memorial Honduras asserts:
"...many of the texts on which the Award is
based include references to the territories
situated to the north and to the south of Cape
Gracias a Dios. The former are treated as part
of Honduras, the latter form part of the
territorial sovereignty of Nicaragua. This
necessarily implies that taking Cape Gracias a
Dios as the basis for a west-east projection
places ail areas to the north within Honduras
and ali to the south to Nicaragua. Although
concerned with the territorial limits, the Kingof
Spain could not ignore the islands adjacent to
the coast, which were weil known in the
cartography of the eighteenth and nineteenth
centuries. The Award on the limits of the
continental territory necessarily had to have
effects on the Spanish islands adjacent to the
135
It was Nicaragua that recalled that in 1962 the Mixed Commission gave the precise
location as Parallel" 59.8' N (and 83° 08.9' W) and which brought up the problems
arising from the modificationthis point due to the sedimentary accumulation, and which
proposed solutions in line with the nature of said changes. See NM, VII and Infra Chap. X.
53 continent, which were attributed before
independence to one or another provincial
administration."
4.21 The Honduran statement is incorrect: 1) referring to north and south
of Cape Gracias a Dios is not the same as using a parallel; 2) it is
arbitrary to make Cape Gracias a Dios the basis for a west-east
seaward projection and, consequently, the implied result that ali the
maritime areas north of the Cape are Honduran and those to the
south are Nicaraguan; 3) the statement that the 1906 Award also
dealt with islands beyond the mouth of the Coco River is unfounded,
as we have already established; and 4) no document exists to support
the claim that the islets and cays located in the area in dispute were
attributed to the provinceof Honduras during the Colonial era.
4.22 One could also characterize as wishful thinking the statements made
by Honduras in 5.10:
"The Arbitral Award of 1906 rejected
Nicaragua's claim to delimit the territory by
'the meridian which passes by Cape Camar6n
and following this meridian up to the coast.'
Faced with a choice between a meridian (the
meridian that passes by Cape Camar6n) and a
parallel (151h parallel, that passes by Cape
Gracias a Dios), and giving full effect to the
overwhelming evidence, the King of Spain
chose the latter. Indeed, the use of meridians
and parallels coïncident with well-known
geographical accidents for the delimitation of
the administrative limits of the Spanish Crown
was a technique used frequently during the
colonial period."
4.23 It was not a matter, as Honduras claims, of the Arbitrator choosing
between a meridian (85°, that passes by Cape Camar6n) and a
parallel(15° that passes by Cape Gracias a Dios). It follows clearly
from the Nicaraguan claim to a boundary defined in its last section
by a meridian, that its location was exclusively on land: "the
meridian which passes by Cape Camar6n and following this
meridian up ta the coast" (emphasis added). On the other hand,
during the arbitral proceedings Honduras never referred to the 15 h
parallel as an alternative; in fact, Honduras asked the King of Spain
for a boundary to the coast (at Sandy Bay) along a parallel more than
fifty kilometers south of Cape Gracias a Dios. Given this state of
affairs, the Arbitrator chose to follow the course of the Coco River.
54 The Award explicitly rejects the use of meridians and parallels,
considering that: "by either designating Cape Camar6n or Sandy Bay
one would have to resort to artificial boundary lines that in no way
correspond to well-marked natural boundaries, as is recommended
by the Gamez-Bonilla Treaty."
4.24 Similarly, in paragraph 5.11, Honduras states:
"It is obvious that the Nicaraguan claim before
the King of Spain, based as it was on meridian
85, implied a claim of Nicaraguan sovereignty
over the islands situated to the North and to the
East of said meridian, including (expressly) the
Swan Islands and (impliedly) the Honduran
islands which Nicaragua now claims."
But the fact that this claim was not taken into consideration by the
Arbitrator does not imply, as Honduras would have it, that
"Nicaragua cannot now aspire to sovereignty and jurisdiction over
maritime spaces and islands situated to the north of Cape Gracias a
Dios which formed part of its earlier-rejected-claim."
4.25 In the first place, only Nicaragua laid a claim to islands in the
arbitration. Honduras said nothing on this subject; if she had, the
parallel she proposed as the boundary to the coast, if continued into
the sea would have split sorne cays in half. Secondly, the Award
never mentions the Honduran Swan Islands, or any other sea islands.
Consequently, one cannot assert that the Award rejected the
Nicaraguan claims to those islands or to any other islands, but
simply that the question of islands was not included in the subject of
the arbitration.On the other hand, this is not surprising because
when the Parties themselves had tried to indicate on a map the points
of disagreement along the border, they fai136 to point out any dispute
over islands and cays in the Caribbean. Lastly, Cape Gracias a
Dios is not in and of itself the terminus of the land boundary, nor is
the parallel that passes through it extended by the Award in order to
attribute islands and maritime spaces north and south of the same,
which is the erroneous conclusion Honduras reaches in paragraph
5.12.
136
See Vol. Il Map 1.. See also in Memoire du Gouvernement de la République du
Honduras. Annexes Volume VI (Annexe cartographique), 1 de juin 1988. Carte A.20.
Affaire relative au différend frontalier terrestre, insulaire et maritime, El Salvador
Honduras, Nicaragua intervenant.
554.26 Honduras makes a misleading identification between the Cape and
the Parallel, between the land border ordered by the King of Spain in
1906 and the mant1me boundaries, which remain to be
determined. 137 The parallel was unrelated to the land border and,
therefore, even more so unrelated to the maritim138elimitation,
which was not affected by the arbitral award.
4.27 What is the basis for this west-east projection that, starting from
Cape Gracias a Dios, would make ail areas139rth of the Cape
Honduran and ail those south of it Nicaraguan? The Cape, orto be
more precise, the mouth of the Coco River, is the beginning of the
delimitation between Honduras and Nicaragua in the Caribbean; but,
where are the legal grounds, according to the 1821 uti possidetis, to
support the thesis that this boundary follows along the 151h parallel
rather than a line more consistent with the direction of the coast at
that point? If the geography is taken into account, any extrapolation
of the line of the Award seaward would result in the cays being
attributed to Nicaragua, as they are located to the south of the Main
Cape Channel and more closely linked to the islands to the south
than to those to the north of this Channel.
4.28 Contrary to the position of Honduras, Nicaragua does not favor
transforming a decision on land boundary delimitation into a
decision that attributes cays, adjudicates maritime spaces and fixes
maritime boundaries, with no respect for the content of the original
decision and the period in which it was made.
4.29 The 1906 Award (and the 1960 Judgment) did not acknowledge, or
even hint at Honduran sovereignty over islands in the Caribbean or
any other maritime area. Nor, by any means, did it proceed to delimit
those that may belong to the Parties from the point, at the mouth of
the Coco River, where the land border between them ended on the
Atlantic coast.
137
See, in particular, HCM, para. 5.16.
LlHEven the Honduran assertion that Nicaragua does not have any title to land territory to
the north of the Parallel passing through Cape Gracias a Dios is incorrect. The land
boundary between Nicaragua and Honduras, established by the Award, which took into
account the principle of uti possidetis iuris, in part is to the north of said parallel.
uy This west-east projection presented in the HCM, para. 5.9, is reiterated in para. 5.32,
now in an attempt to compare it to the west-east projection (towards San Andrés and
Providencia)of the coast of Nicaragua which would be deduced from the Nicaraguan
Application against Colombiaf December 6, 2001. Honduras ignores a very relevant fact.
That coast southof Cape Gracias a Dios ali the way to the Nicaraguan border with Costa
Rica is practically vertical, contrary to the Honduran coast, the projectionich is
basically horizontal.
56 III. Uti possidetis iuris outside the 1906 Award?
4.30 One must assume that, if the 1821 uti possidetis iuris had been
applicable to the islands in the Caribbean and maritime areas
adjacent to the Atlantic Coast, the Royal Arbitrator, after having
heard the parties, would have made a finding on this point in the
Award. It must be recalled that both Parties were familiar with the
convenience of delimiting maritime areas, as evidenced by their
agreement to establish a maritime boundary in the Gulf of Fonseca
140
(Act No. II of the Mixed Boundary Commission, 1900).
4.31 In spite of this, although the 1906 Award did not decide on the
sovereignty of the islands in the Caribbean Sea or on the maritime
projection of the land border, Nicaragua agrees that if in 1821 there
had been a uti possidetis iuris over the islets and cays located in the
area in dispute and maritime areas adjacent to the Atlantic Coast,
this would have been relevant to the delimitation now in question.
4.32 However, after reviewing the entire "history during the colonial
141
period and the 19thcentury" Honduras was unable to provide a
single document, a single act by the Crown, making reference to the
jurisdiction of one province or the other of the Audiencia of
Guatemala over the islands, much less, the maritime areas in the area
in dispute.
4.33 On the other hand, there are no "colonial effectivités", that is, acts of
effective administration by the local authorities that, one way or
another, provide proof of the exercise of jurisdiction over the
"islands" in the area under dispute 142nor, needless to say, over
maritime areas.
4.34 Honduras can only cite sorne descriptions of the province and of the
Gulf of Honduras, made in the middle of the 18th century, and a
"Report rendered by Don Juan Antonio de Tarnos, Governor of the
140ICJ Reports 1960. Case concerning the arbitral award made by the King of Spain on 23
December 1906. Vol. 1pp. 234-238 Annex 9.
141The title for Honduras' Section II of chapter 3 (paras. 3.3-3.8) of the HCM.
142 In the Frontier Dispute (Burkina Faso/Mali) the Court referred to the "colonial
effectivités" as "the conduct of the administrative authorities as proof of the effective
exercise of territorial jurisdiction in the region during the colonial period" (ICJ Reports,
1986, pp. 586, para. 63). Also, Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras, Nic:araguaintervening), ICJ Reports, 1992, pp. 388-389, para. 45.
57 Prol'ince of Honduras, on the visit made to said province (1816) in 143
accordance with the Provisions of the Ordenanza de Intendentes."
4.35 The descriptions on1y show that Cape Gracias a Dios was a well
known point. As for the Governor Tornos' report, Honduras says:
"In 1816 the Spanish Governor of the Province of Honduras
informed the President of the Council of the Indies that his Province,
which included the Judicial District of Gracias a Dios, was "situated
between 13 and 15 degrees, northern latitude." This reference,
according to Honduras, "reflects a customary practice during the
colonial era of relying on parallels to define territories and the
territorial limits of the Spanish jurisdictions in America." The
reference would be "also consistent with the view that Cape Gracias
a Dios was chosen as a colonial limit precisely because it coincided
with the 15 1hparallel and with the mouth of a river." 144
4.36 The abovementioned document and the references to it In the
Honduran Counter-Memorial, merit the following comments:
1) ln no part of the report does Governor Tornos mention, in spite of
what the Honduran Counter-Memorial suggests, the existence of a
judicial district of Gracias a Dios in the province; this has been
added by the authors of the Counter-Memorial, as a part of a
systematic policy of supplementing documents with self-serving
interpolations reflecting the current Honduran interests;
2) Governor Tornos' report does not establish the boundaries of the
province. The references to parallels 13 and 15are merely to indicate
145
its location : the territory was never limited to the boundaries of
those parallels. If it had been so limited one would have to conclude
that the coast of Honduras did not end, but rather began, at Cape
Gracias a Dios and that it included the whole of present day El
Salvador and half the territory of Guatemala and Nicaragua. Even
the Spanish treaty acknowledging the Republic of Honduras, on
March 15, 1866, belies any territorial alignment along parallels of
latitude with Nicaragua, by stating in Article 1 that the territory of
143These documents were already provided by Honduras in the arbitration of its land border
with Guatemala (1932-1933) and are now reproduced, at !east in part, in the Honduran
144nter-Memorial, Vol. 2, Annexes 1-3.
See HCM, para. 2.1 1.
145This was common practice. The Court itself has resorted to this method to describe the
geographical context of a dispute. Thus, in Continental Shelf (Libya/Tunisia), the Court
noted that,The more westerly of the two States is Tunisia, lying approximately between
30° N and 38° N and between 7° E and 12° E. To the east and south-east of it lies Libya,
approximately between 19° N and 34° N and between 9° E and 25° E." (Judgment. of 24
February 1982, para. 19) !Cl Reports, 1982, p. 34.
58 Honduras is bounded in the "East, Southeast and South by the
146
Republic of Nicaragua" ;
3) Following the 1906 Award, the 1821 uti possidetis iuris is that
which is reflecteélin the Award, and it is incorrect to assert that
"Cape Gracias a Dios was chosen as a colonial limit precisely
because it coincided with the 15 h Parallel and with the mouth of a
river." The mouth of the river was what was adopted as a boundary
1
in the Cape, making no mention of the parallel. If the 15 h Parallel
were part of the 1821 uti possidetis iuris why did Honduras not
argue this in the arbitration of the King of Spain which led to the
1906 Award.
4.37 Thus, Honduras' attempts to establish her claims by means of uti
possidetis iuris are ineffective.
A. No ISLAND UT! POSSIDETIS [URIEXISTS INTHE AREA IN DISPUTE
4.38 As Honduras has offered no proof that the principle of uti possidetis
iuris points to the existence of a title of Honduras to the islets and
cays between the maritime boundary presented by Nicaragua and the
parallel passing through Cape Gracias a Dios, it tries to make up for
this Jackof evidence by linking an alleged "initial" title based on the
application of the principle of uti possidetis iuris to subsequent
effectivités.
4.39 Nicaragua shares the view taken by the Chamber of the Court in its
Judgment of 11 September 1992, and on which Honduras places
147
such trust. According to this position, if there is no relevant legal
documentation to support one side or the other, it is necessary to
consider the conduct of the interested parties in the years
immediately following independence, insofar as this may indicate
how the situation was perceived at the time. A possession backed by
the exercise of sovereignty can be considered in this case as proof
that confirms the uti possidetis iuris: "...In the case of the islands,
where the historical material of colonial times is confused and
contradictory, and the accession to independence was not
immediately followed by unambiguous acts of sovereignty, this is
146See HCM, Vol. 2, Annex 8.
147To back its claim over the "islands" in the area in dispute invoking the 1821 uti
possidetis iuris, Honduras leans heavily on the reasoning of the Court's Judgment in The
Land, Island and Maritime Frontier Dispute Case (El Salvador/Honduras, Nicaragua
intervening), ofl September 1992, related to the islands of the Gulf of Fonseca. Honduras
specifically cites paras. 333, 341, 346, 347, 367 and 368 of the Judgement. See HCM,
paras. 5.21-5.28.
59 practically the only way in which the uti possidetis iuris could find
formai expression so as to be judicially recognized and determined,"
148
as the Judgment of 1992 expresses the matter.
4.40 Sorne uninhabited "islands," only used occasionally as a shelter for
the shipwrecked and for fishermen, with little or no economie
importance during centuries are natural candidates for the
application of these considerations. In the case of the far more
important islands of the Gulf of Fonseca, the Chamber of the Court
was able, with sorne effort, to establish sovereignty over islands
using this method. Applied to the islets and cays in the area now in
dispute in the Caribbean, a much more difficult exercise to
accomplish, the only possible conclusion would be the affirmation of
the sovereignty of Nicaragua.
4.41 If nothing can be found in the legislative and administrative records
of the Spanish Monarchy to establish Honduran or Nicaraguan
jurisdiction over islets and cays in the area in dispute, there is
nothing in the conduct of Honduras related to, not just the "islands",1
but to the entire Atlantic Coast during the greater part of the 19 h
century. During this time, Great Britain oversaw that area and U.S.
adventurers and speculators explored it seeking guano, placing their
flag on any uninhabited places above sea levet with guano deposits.
Honduras has not presented any evidence of activities or of
Honduran control in the years following 1821, the date of
149
independence. The explanation for this is simple. At that time
Honduras exercised no control over this area or even areas further to
the north and the west. Even the names of the cays (Bobet Cay,
Savanna Cay, South Cay...) do not reflect the 1821 uti possidetis
iuris. The 1ater Honduran claims were vague and, when they became
specifie, controversial.
4.42 The treaty signed by Honduras with Her Majesty of Great Britain in
Comayagua on 28 November 1859 (Cruz-Wyke Treaty) ending the
British protectorate of the Honduran Mosquitia and acknowledging
the sovereignty of Honduras over the Bay Islands, 150is irrelevant for
the purposes at hand. Not only does this treaty refrain from
establishing her boundaries and eventual island dependencies, but
also it explicitly excludes (article Il) "any question of boundary
between the Republics of Honduras and Nicaragua." A few weeks
later, on 28 January 1860, the Zeled6n-Wyke Treaty was signed by
Great Britain recognizing "as an integral part under Nicaraguan
14
149Cl Reports, /992, p. 566, para. 347.
See infra Chap. V.
150See HCM, Vol 2, Annex 7.
60 sovereignty the country up until now occupied or claimed by the
151
Mosquito Indians," forcing it to "cease its protectorate" (article 1).
4.43 lt is also worth mentioning that the treaty of recognition of the
independence of Honduras signed with Her Majesty, the Queen of
Spain, in Madrid on March 15, 1866, 152which extends (article 1) to
"the adjacent islands that lie along its coasts," is very similar to the
language used previously in the treaty acknowledging the
independence of Nicaragua (Madrid, 25 July 1850). 153 Neither of
154
these instruments makes unambiguous reference to islands.
4.44 Finally, the Decree (23 November 1868) creating the department of
155
the Honduran Mosquitia established what were clearly land
boundaries. Thus, the department of the Mosquitia bordered "to the
East with Cape Gracias a Dios, to the West with the Aguan River; to
the North with the Atlantic Ocean and adjacent islands; and to the
South with the summit of the mountains which separate this area
from the inhabited zone of the Department of Olancho" (article 1).
The islets and cays in the area in dispute are located to the east of
Cape Gracias a Dios and are not mentioned in the Decree. This
omission is the more significant because the decree makes a specifie
reference to adjacent islands (not included in the Department) when
defining its northem boundary.
4.45 The postcolonial effectivités, when present, are attributable to
156
Nicaragua. The boundary treaties of 4 July 1869 (Ferrer-Medina
Treaty) and of 1 September 1870 (Ferrer-Uriarte Treaty), which
151See case concerning the arbitral Award made by the King of Spain o 23 December 1906
(Honduras v. Nicaragua) ICJ Report 1960, Vol 1.Annex 5, p. 217.
152See HCM, Vol. 2, Annex 8.
153
Article 1: The King of Spain "forever renounces in the most formai and solemn manner,
for himself and his successors the sovereignty, rights and actions he has over the American
territory located between the Atlantic and the Pacifie Sea with its adjacent islands, known
previously as the Province of Nicaragua, now the Republic of the same name." Further on,
article 2 reads, "His Catholic Majesty recognizes as a free, sovereign and independent
nation the Republic of Nicaragua and ali the territories belonging to it from sea to sea"
154phasis added). See NR, Vol. II, Annex 11.
The Spanish-Honduran Treaty of 1866, if anything, argues in favour of Nicaragua since
its article 1 defines that the territory of Honduras is bound in the "East, Southeast and
South by the Republic of Nicaragua." The reference of Nicaragua being located to the East
of Honduras can only be explained if the islets and cays in the area in dispute were
considered to be part of Nicaragua.
155
156See HCM, Vol. 2, Annex 62.
In Land, Island and Maritime Frontier Dispute the Court warns that "(it) may have
regard also, in certain instances, to documentary evidence of post-independencetivités
when it considers that they afford indications in respect of the 1821 uti possidetis iuris
boundary, providing a relationship exists between the effectivités concerned and the
determination of that boundary" (JCJ Reports, 1992, pp. 398-399, para. 62).
61 were not ratified, recognized the traditional presence of Nicaragua
157
north of the Coco River. Nicaraguan possession of the entire river
ended only with the implementation in 1962-1963 of the 1906
Award. 158
4.46 But the most instructive history is the dispute over turtle fisheries
between the Government of His British Majesty and Nicaragua,
which Honduras herself refers to in extenso, 159 under the mistaken
belief that it benefits her cause. This was not, be it said, the first
conflict which Nicaragua had had with Great Britain over the
exercise of jurisdiction over islands in the Caribbean. ln Decree of 4
October 1864 the Government of Nicaragua declared the islands and
islets adjacent to its Atlantic Coast to belong to the State, regulating
the import and export trade. The British Government considered that
this decree contradicted the Zeled6n- Wyke Treaty, but Nicaragua
replied that the Treaty recognized her sovereignty over the
Mosquitia and, therefore, the adjacent islands and islets were the
sovereign property of Nicaragua.
4.47 The documentation cited by Honduras shows that in 1869 Nicaragua
had already issued legislation on turtle fishing in an island
"jurisdictional district" in the Caribbean, subjecting the fishermen to
payment of a duty 160 which she attempted to collect in or before
1896, once her authorities were effectively established on the
Atlantic Coast. Nicaragua went as far, in 1904, as seizing severa!
Cayman schooners.
161
4.48 Throughout these negotiations, according to Honduras, Nicaragua
made no daims regarding any islands north of the !5th parallel. This
is not true. Thus, the concession granted by the Government of
Nicaragua on Il April 1904 to Mr. Deogracias Gross for the
exploitation of coconut palms belonging to the Nation located on the
Atlantic Coast and the adjacent islands and cays, contained -
according to information from the British Consul in Greytown in a
letter on the following 9 of May- a list of these islands and cays that
included False Cape Cays, clearly located north of the !5th Parallel
157
15 See NM, III, B, 29-31.
xNM, III; A, 1-3.
15See HCM, paras. 3.9-3.13.
16The ordinance, according to the HCM, p. 33, footnote 10, establishes that 'The vessels
that may arrive at the islands and caysthe jurisdictional district to turtle fish...were to
161a levy." The ordinance did not detail the area covered by the "jurisdictional district."
See HCM, para. 3.11.
62 (15° 33' 8" N 83° 9' 14" W), and even to the north of the cays
situated in the area currently in dispute.62
4.49 lt must not be lost to sight that Nicaragua was not discussing any
boundary or maritime jurisdiction with Great Britain, but rather the
supposed historical right of Cayman islanders to fish in the vicinity
of the islands and cays that Nicaragua considered her own. In spite
of what Honduras now claims, it does not appear that Nicaragua had,
under those circumstances, a "clear and formai opportunity" to
present claims, given that eventually Great Britain accepted the
creation of a Joint Commission to deal with the issue under the
condition of limiting it to the Miskito Cays, Morrison, and the
163
surrounding areas. Whether these were located north or south of
the 15thParallel was irrelevant.
4.50 And what was Honduras doing in the meantime? Either there was no
Cayman fishing activity north of the 15thParallel and in that case the
silence of Nicaragua was more than justified, or there was such
activity, in which case, how does one justify the Honduran silence?
This silence is ali the more significant in the light of the fact that the
turtle fishing dispute took place at a time when Nicaragua and
Honduras were involved in a dispute over the delimitation of their
land boundary in the same area, in the course of which Honduras
presented a claim to the land boundary that ended on the Atlantic
Coast opposite the main area of turtle fishing.
4.51 In fact, apart from the Cayman islanders, it was the Miskito Indians
to the south of the Coco River who were involved in turtling in the
waters around the cays off the coast of Nicaragua in the Caribbean
Sea. As is noted in an ethnographical survey of the Miskito Indians:
"The Miskito inhabiting the immediate seashore from Cape Gracias
a Dios on southward are excellent seamen; they were already noted
for their courage on the sea by the buccaneers... The Miskito living
to the north of that settlement, however, navigate the lagoons and
rivers, and rarely venture on the sea."164
4.52 During the 19thcentury and first decades of the 20th,there were no
Honduran port facilities in the Caribbean in the area in dispute. The
only Port in the area was Port Cape Gracias that has been
162See HCM Documents 3.09 deposited by Honduras with the Registry as referred in the
HCM.
163That was the area most exploited by fishing activities of the Cayman islanders. See B.
Nietschmann, Between Land and Water (Seminar Press, 1973), pp. 37, 48.
164E. Conzemius, Ethnographical Survey of the Miskito and Sumu lndians of Honduras and
Nicaragua, Smithsonian Institution, Bureau of American Ethnology, Bulletin 106,
Washington, 1932, p. 54.
63 administered by Nicaragua since the 19 century to these days. The
nearest Honduran port was located over 100 miles north west of
1
Cape Gracias a Dios. lt was only weil into the 20 h century that
Honduras built the present Puerto Lempira within Lake Caratasca,
the main lagoon where the Miskito Indians living North of the Coco
River traditionally fished, as was pointed out in the above paragraph.
4.53 Honduras, by offering the history of the conflict between Nicaragua
and Great Britain over the fishing of turtles, has helped to
demonstrate the lengthy presence and interest of Nicaragua in an
area in which Honduras has been practically absent until very
recently. The Treaty ending this affair is Annex 12 of this Reply.
4.54 Nicaragua cannot accept the Honduran claim that from the principle
of uti possidetis "it followed that Nicaragua could have no claim to
the adjacent islands and maritime spaces to the north of the
Cape," 165 because this cannot be deduced from the uti possidetis
iuris nor from any of the documents mentioned by Honduras. It is
one thing to adjudicate islands adjacent to the mainland coast in
accordance with a boundary line, and a totally different matter to
assert - simply because Honduras says so and it is Honduras'
interest for it to be so - that this line the extension of the parallel
that passes through the final pointof the land border.
4.55 In this context, a significant paragraph is found in the Rapport de la
Commission d'examen, which assisted the King of Spain as166
Arbitrator, reproduced by Honduras in her Counter-Memorial.
The report notes that:
"le 15 novembre 1843, le Gouvernement du
Honduras a édicté un décret, autorisant la
légation du Nicaragua à représenter le
Honduras, et à soutenir et faire respecter les
droits découlant dudit traité,conformément aux
instructions, dans 1'article 6 duquell est dit que
le ministre doit déclarer que tout le territoire
Mosquito et ses îles adjacentes appartiennet à
1'Amérique centrale, et par conséquent au
Honduras et au Nicaragua (Réplique du
Honduras, page 140) conformément à leur ligne
de frontière."
165
166See HCM, Vol. 1, para. 3.7, emphasis added.
See HCM, Vol. 1,para. 3.8
644.56 The emphasïs was added by Honduras, according to which: "It was
clear that Honduras and Nicaragua considered their claims to the
adjacent islands and maritime spaces as following the line of the
167
land frontier between them," a conclusion which reflects her
interests, not logic. What can be deduced from the text is that there is
a Honduran Mosquitia and a Nicaraguan one, both with islands
determined by the boundary, the definition of which is
undetermined. No mention is made of the boundary extending out
into the sea by means of the extension of a parallel. As a matter of
fact, the general direction of the land boundary established by the
Award of 1906 would lead to a seaward projection in a northeastern
direction, attributing the islets and cays in the area in dispute in the
present proceedings to Nicaragua.
4.57 Honduras cannot demonstrate sovereignty over the islands based on
the situation of the uti possidetis iuris of the continental land mass.
There is a contradiction, a vicious circle in the Honduran argument
that the cays north of the 15 h parallel are Honduran, because the
maritime boundary projects eastwards following a parallel starting
from the land boundary at Cape Gracias a Dios. This is precisely
what must be proven: that the boundary was already there in colonial
times, at the time of independence. Ifthis is not the case, there is no
uti possidetis iuris, but simply a lack of definition if no other title is
found. The claimed title arising from subsequent practice cannot
help confirrn a non-existent uti possidetis, and much less, its
projection over maritime areas adjacent to the "islands."
B. NO MARITIME UT/ POSSIDETIS lURIS EXISTS IN THE AREA IN DISPUTE
4.58 Honduras pursues her attempts to exploit the 1821 uti possidetis 168
iuris (and the effectivités)mixing "maritime areas" and "islands,"
in the hope that, perhaps by osmosis, these areas would benefit from
this principle. Once the island- related claim based upon uti
possidetis iuris in the area in dispute is eut to size, then its eventual
effects on maritime areas also disappears.
4.59 Honduras is mistaken when it questions Nicaragua's support of the
1821 uti possidetis iuris. It is not necessary to invoke this principle if
the goal is to reaffirm that the mainland or island coasts of the
Parties enjoyed in 1821 a narrow strip of jurisdictional waters.
167
168See HCM, Vol. 1, para. 3.8.
See, i.e., HCM, Vol. 1, paras. 5.19, 5.30, 5.31.
654.60 It should also be noted that as a general rule the Crown did not
assign jurisdiction over the sea, even in these jurisdictional waters,
to provincial authorities but rather to higher authorities- Audiences,
Captaincies General, Viceroyalties. Consequently, one cannot truly
speak of any provincial maritime limits, and therefore, of any
applicable uti possidetis iuris.
4.61 In addition, the Monarch' s orders to his Captains General and other
authorities to oppose piracy, the corsairs and trade in contraband in a
more or Jess defined geographical area, by no means can be confused
with acts of attribution of territorial jurisdiction on the high seas. 169
4.62 In any case, whatever the nature and scope of the royal orders
allotting different spheres of action to different authorities in the
struggle that Spain carried out on the high seas to free its territories
of the trade in contraband, the corsairs and piracy, it is clearly
inappropriate to rely upon such activities to establish a maritime uti
possidetis over the continental shelf and exclusive economie zone
which are modern legal concepts. Nicaragua does not believe that
the Kings of Spain, however wise they may have been- and sorne of
169 This initial suggestion by Honduras (HCM, para. 5.7) goes then (para. 5.13) to the
extreme of claiming that Cape Gracias a Dios was the traditional boundary of the Captaincy
General of Guatemala. Honduras cites the Royal Order (Real Cédula)of 23 August 1745 by
which two military jurisdictions were created, one from Yucatan to Cape Gracias a Dios
and the other from the Cape to the Chagres River (not included). Clearly this is a
misinterpretation, among other reasons because it suggests the use of a parailel to define the
jurisdiction, a parallel that is nowhere mentioned, or even implied, in the text. Honduras
concludes: "In other words, Cape Gracias a Dios also expressly constitutes a limit
separating the areas of jurisdiction of the military authorities for the exercise of their
competences in the land and maritime areas for guarding the coasts. This constitutes an
important expression of the maritime uti possidetis iuris in the colonial period under
Spain." Honduras even dares (para. 5.17) to invoke the Royal Order of 20 November 1803
in order to confirm the role of Cape Gracias a Dios as a maritime and continental boundary
between Honduras and Nicaragua. Although different interpretations have been made of
this Royal Order regarding the uti possidetis iuris of Nicaragua and Columbia, not even the
latter neo-Granadian Republic has gone as far as to claim - as Honduras does - that
Nicaragua (and Costa Rica) was (were) part of the Viceroyalty of Santa Fe, breaking the
very concept of Central America (which originally included the provinces that had made up
the Audience of Guatemala). Based on this, Honduras maintains that if Nicaragua today has
an Atlantic Coast this is thanks to a title granted by Columbia through the 1928 treaty.
"Nicaragua cannot have any right to claim a greater continental or insular territory or
maritime spaces than that granted by the treaty with Columbia, since at the time of the
colonial succession Nicaragua possessed no coast on the Caribbean Sea, and hence could
have no sovereignty over the adjacent islands" (para.5.18). Honduras contradicts her own
acts, some of which are included in the same CM, such as the 1848 letter authorizing a
Representative of Nicaragua to represent Honduras as weil in dealing with Great Britain
over matters regarding the Mosquitia (See HCM, Vol. 2, Annex 6). See also the treaty25
July 1850 between Nicaragua and the Kingdom of Spain in which the former sovereign
recognizes the Republic of Nicaragua "with ail the territories belonging to it from sea to
sea" (emphasis added). See supra para. 4.43.
66 them certainly were not- had a time machine available to carry them
to the second half of the 20th century in order to illuminate their
Royal Orders with jurisdictional foresight.
4.63 In 1989, in the case of the determination of the maritime boundary
between Guinea-Bissau and Senegal, the Court of Arbitration, noted
the Jack of precedents in the American continent of the application
of uti possidetis iuris to the delimitation of maritime spaces because
of the recent evolution of the Law of the Sea, that "on ne peut
prétendre trouver des précédentsau siècle dernier, ép17u où les
Etats de l'Amérique latine accédèrentà l'indépendence."
4.64 Given that the 1821 uti possidetis iuris is absolutely inadequate to
attribute areas which, like the continental shelf and exclusive
economie zone, flow directly from sovereignty over the coast
according to International Law, one can only guess that Honduras'
convoluted arguments for the use of this principle as the origin of an
initial title over them is a novelty aimed at supporting an anomalous
extension of the Honduran limits at sea.
4.65 In fact, Honduras goes to considerable trouble to maintain that the
uti possidetis is the initial title whose continuity and extension over
maritime areas must be - and is, according to Honduras - confirmed
by Honduran postcolonial effectivités:"the maritime effectivitéshere
are significant in explaining how the original title, initially
applicable to land, islands and territorial waters, extended in the
1
course of the middle of the 20 h century towards these new emerging
areas, by means of the practice and reciprocal conduct of both
countries, mainly by their respective constitutional and domestic
171
legislation."
4.66 This invocation of the juridical concept of uti possidetis iuris as
support for a maritime delimitation is completely contrived. But
Honduras insists on making the uti possidetis iuris the basic
principle of the agreement referred to in articles 74 and 83 of the
United Nations Convention on the Law of the Sea of 1982. This
agreement can be found - and, Honduras claims, is found between
Honduras and Nicaragua - "in the form of reciprocal conduct which
may show the existence of acquiescence or sorne other form of tacit
consent, capable of generating and/or modifying rights and
obligations between the parties." 172Once again, to take such a route
resort to theuti possidetis iuris is unnecessary. It would be enough
170Award of 31 July 1989, paras. 63 and 64 (RSA, Vol. XX, pp. 119 ff.; or RGDIP, 1990,
pp. 204 ff.). English text in ILR, 1990, Vol. 83, pp. 49 ff.
171See HCM, para. 5.35.
172
See HCM, para. 5.37.
67 173
for Honduras to prove the "agreement." But it cannot do so, nor
can it age it in the casksf the King of Spain.
IV. Conclusions
4.67 Honduras takes the Parallel that passes through Cape Gracias a Dios
and hurls it into the Caribbean Sea, and tries to impe] it seaward with
the fictitious motor of the uti possidetis iuris. According to
Honduras, this legal principle is a sort of legal panacea that can
attribute sovereignty over islands and territorial waters and that it
also, weil over one hundred years in advance of the recognition of
the existence of a continental shelf and an exclusive economie zone,
was able to delimit these areas between Nicaragua and Honduras in
the Caribbean Sea. Apparently, Honduras feels that endless
repetition is equivalent to evidence. It trusts that by repeating a
fallacy over and over, the Court will end up believing it.
4.68 The conclusions of Nicaragua regarding the role of the 1821 uti
possidetis iuris in relation to the objective of the current case can be
summarized as follows:
i) The 1906 Award of the King of Spain determined the land
boundary between Nicaragua and Honduras from the Atlantic
Coast to the Pass of Teotecacinte, according to the 1821 uti
possidetis iuris.For the purposes of the current case, this Award
is only relevant to the degree that the end of the land boundary
along the Atlantic Coast is the starting point for a maritime
delimitation. The Award had no effects on islands or maritime
areas beyond the mouth of the Coco River.
ii) The islets and cays located in the area in dispute cannot be
attributed to Honduras based on the 1821 uti possidetis iuris, nor
can that principle be considered a relevant circumstance in this
regard. Honduras has not presented any acts by the Crown or
colonial effectivités that establish, or even imply, such an
attribution. Regarding postcolonial effectivités the only ones
identifiable from non suspecta eras are those of Nicaragua.
iii) Lastly, thereis no uti possidetis iuris of 1821 that attributes or
delimits maritime areas. The exercise of authority on the high
seas by representatives of the Crown must not be confused with
acts attributing territorial jurisdiction, much Jess could it
173
See infra Chap. VI.
68establish any rights of sovereignty and jurisdiction over areas
that emerged much later. As far as jurisdiction at sea was a
competence of supraprovincial Authorities it is inappropriate to
speak of maritime boundaries of the provinces during the
colonial period.
69 CHAPTERV
THE RELEVANCE OF THE EFFECTIVITÉS TO MARITIME
DELIMITATION
I. Introduction
5.1 In the following paragraphs of this chapter Nicaragua will give the
criteria applicable to the effectivitésclaimed by Honduras, in regard
to the maritime delimitation in the area in dispute. The next chapter
has a detailed discussion of those dealing with the acquisition of title
of sovereignty over islets and cays located in the area. The
distinction is made because, when effectivités are relied upon for
establishing a claim of sovereignty over islets and cays, this does not
necessarily have legal consequences affecting maritime delimitation,
much Jess for establishing a claim, as Honduras seeks to do in the
1
present case, to a boundary along the 15 hParallel.
A. THE EFFECTIVITÉSACCORDING TOHONDURAS
5.2 Among the legal circumstances relevant to maritime delimitation,
174
according to Honduras, and outstanding among these are her
effectivités"extending over severa} decades and more" over islands
and waters north of the 15 Phrallel. The effectivités,Honduras says,
reassert the maritime boundary deduced from the uti possidetis
iuris17, and also provide an independent foundation for the
176
Honduran title over these areas. Honduras attempts to portray a
continuum between the uti possidetis iuris of 1821 and the
effectivités that would be additional to and confirmatory of the
exercise of the right deduced from her legal title. However, "even if
this is a case in which legal title is not capable of showing exactly
the territorial expanse to which it relates", Honduras argues referring
to the Judgment in the Frontier Dispute (Burkina Faso/Mali), that
the Court "has recognized that effectivitéscan theo play an essential
177
role in showing how the title is interpreted in practice."
174
See HCM, para. 6.4.
175See HCM, para. 1.29.
176See HCM, para. 8.5. See also, paras. 1.4, 1.8 and 1.9.
177
/CJ Reports 1986, para. 63 (at p. 587). See HCM, para. 6.6.
715.3 In Chapter 6 (paragraphs 6.1-6.78) Honduras presents her supposed
1
effectivités over the islands and adjacent waters north of the 15 h
Parallel. Honduras daims that Nicaragua has made no effort
whatsoever to address the fact that Honduras has long exercised full
178
and effective sovereignty. The Honduran effectivités would make
this deficiency even more evident as, according to Honduras,
Nicaragua "has provided no evidence of the exercise by it of
jurisdiction or State functions in respect of any of the areas,
including the islands, which it now claims." 179
B.THE EFFECTIVITÉSACCORDING TO NICARAGUA
5.4 The way the effectivités are approached by Honduras requires sorne
examination prior to a detailed consideration of those effectivités
specifically invoked:
i) Having discarded the colonial and postcolonial effectivités as
confirmatory of a title based on the 1821 uti possidetis iuris, 180it
only remains to examine if they have sorne relevance in any
other respect;
ii) Not ali the effectivités presented by Honduras are, legally
speaking, truly effectivités, that is, they are not ali legislative,
judicial and executive acts of administration and the provision of
public services by the state through its institutions and agents in
the territories over which a claim of sovereignty is being made.
For example, the references to laws that are applied generically
to the entire national territory, territorial sea or maritime areas,
without specifie mention of their application in the islets and
cays in the area in dispute do not constitute effectivités.
Similarly, the exercise of an economie activity (fishing) in these
areas by private parties are not effectivités. Nor can activities
such as navigational aids or search and rescue operations carried
out on the high seas be presented as effectivités to establish the
boundaries of an exclusive economie zone or the continental
shelf, as these have nothing to do with the exercise of
jurisdiction over such areas;
iii) Considering that Nicaragua occupied the Atlantic Coast north of
the Coco River until January 1963, it is hard to imagine
Honduran effectivités in the area in dispute prior to that date. In
178See HCM, paras. 6. 1and 6.2.
17YSee HCM, para. 6. 3.
1xo
See supra Chap. IV.
72 the first half of the 20 1h century, the only port operating in the
entire area was the Nicaraguan port of Gracias a Dios which, to
this day, continues to be inside Nicaraguan territory. In fact, the
only effectivitésexisting were those of Nicaragua. 181
iv) It is necessary to rule out ali supposed effectivités created after
the date at which the dispute between the parties arose. In this
case the critical date can be established as 1977, that is, the year
in which Nicaragua proposed negotiations with Honduras in
order to delimit the maritime areas in the Caribbean Sea (NM,
Vol. II, Annexes 3 and 4); everything after that date is a paper
claim, activities conceived of and carried out to artificially
improve one's position. It is interesting to note that Honduras'
supposed effectivités in the area in dispute are dated after 1980,
that is, beginning with the civil conflict in Nicaragua supported
and financed by the United States in cooperation with
182
Nicaragua's neighbors, particularly Honduras.
v) As a result of iii) and iv), the Honduran effectivitéswould have to
date from the short period between Nicaragua's withdrawal from
the coastal region attributed to Honduras by the Award of the
King of Spain, and the Nicaraguan proposai to hold negotiations
to delimit maritime areas in the Caribbean Sea, that is, between
1963 and 1977;
vi) The proof of facts that are presented as effectivités must not be
confused with their value to create, or prove the title over which
sovereignty is claimed. Those presented by Honduras are
irrelevant for these purposes, individually and as a whole.
C. HONDURAS HAS NO LEGAL AND ADMINISTRATIVE EFFECTIVITÉS IN THE AREA IN DISPUTE
5.5 The first line of effectivités presented by Honduras refers to control
an app tcation o f a mmtstrattve, - cnmma • . 1 an d CIVl1 1aws. 184
d 1
However, although Honduras says this application is
"longstanding," 185 "continuous and uninterrupted... for many
181
182See e.g. above Chap. IV, para. 4.52.
See case concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, ICJ Reports, 1986, p. 14 and
the Memorial filed by Nicaragua on 8 December 1989 in the case concerning Border and
Transborder Armed Actions (Nicaraguav. Honduras).
183See HCM, paras. 6.9-6.17.
184See HCM, paras. 6.18-6.3 .
185
See HCM, para. 6.8.
73 decades," 186 the proof provided does nothing to confirm this. The
legal references are generic: there is no point in looking in them for a
specifie mention of the area in dispute or its geographie features,
much Jess for a determination of their territorial scope. The large
majority of the laws and regulations cited were created after the
controversy arose and the same can be said of the administrative
actions subsequent to these laws. The cases given are not examples,
they are "the cases," there are no others, and "the cases" are not
relevant.
5.6 Thus, to say that Article 340 of the Honduran Constitution, the
General Law on Administration, and the administrative law of the
Department of Gracias a Dios, are applicable to the islands and
adjacent waters is futile when those islands and waters are not
187
mentioned. The same is true of the administrative laws that are
cited: Article 5 of the 1927 Law on the Use of National Waters,
which confirmed the state's ownership of islands and cays in the
"maritime zone," Articles 619 and 621 of the Civil Code recognizing
state ownership of "ali natural resources that exists or can exist in its
continental shelf and insular zones" over which Honduras has
sovereignty, as weil as the other laws cited such as the Fishing Law
of 1959, the Petroleum Law of 1962, the Mining Code of 1968, the
Law on the Exploitation of the Natural Resources of the Sea from
1980, the Hydroca188n Law of 1984, the General Law of Mining, as
recent as 1998. Nicaragua also has legislation with very similar
wording. "State property" over the "maritime zone" and other
generic formulas do not imply that Bobel Cay, Savanna Cay, etc.,
are part of the "maritime zone" just because the Counter-Memorial
now says they are.
5.7 With this background, it makes no sense to complain that Nicaragua
has not provided any evidence that she has ever objected to the
Honduran laws and their implementation in the area in dispute. 189
These have no relevance to the matter of maritime delimitation, not
only because of their dates (those after 1977) but because of their
content, which regulates matters within areas of Honduran
sovereignty and jurisdiction with no specifie mention of the islands,
cays and maritime areas in the area in dispute and no clarification
that the scope of their application reached the 15 1h Parallel N.
Therefore Nicaragua, which has followed the same type of conduct,
had no reason to protest. Honduras, so skillful at depositing
1x See HCM, para. 6.18.
IX?See HCM, para. 6.9.
188
See HCM, para. 6.10. Honduras also makes mention of these laws in paras. 3.29-3.30
when dealing with"legislation of parties over maritime spaces."
IXYSee HCM, para. 6.16.
74 documents with the Registry of the Court, has provided none of the
laws she mentions, undoubtedly aware of their irrelevance to the
objectives she pursues.
5.8 Honduras complains that Nicara~ hausafailed to make a comparable
presentation of her legislation.19 This was not done in the Memorial
because Nicaragua, in contrast to Honduras, is not attempting to
distort reality by a forced interpretation of her legislation. But if
Nicaragua were to follow the Honduran tine, she could also point to
a whole series of laws that can be applied in the islands and cays, on
the continental shelf, fishing zone, or any other maritime zone of the
191
Republic.
5.9 Honduras also does not provide, nor can provide, to the Court a
pertinent administrative practice to prove the exercise of sovereignty
or jurisdiction over the islands and adjacent maritime areas. The only
document that Honduras has filed are the witness statements of her
own current civil servants: thus the Customs Supervisor in Gracias a
Dios Department, describing his work, says that "since 1970" fish
caught around the cays in dispute have been exported to Jamaica and
other countrïes. 192Or it mentions a resolution (from the year 2000!)
by the Ministry of Agriculture and Livestock and the Directorate
General of Fishing of Honduras, applying conservation measures
north of the l5 h Parallel. 193
5.10 Regarding Honduran criminai and civil legislation, the assertion of
its application in the area in dispute "in a continuous and
194
uninterrupted manner for many decades" is not accompanied by
the necessary proof. Although Honduras asserts that there is
195
"extensive evidence," which she tries to bolster by presenting the
cases as "examples", the impression is clear that the "example" is the
only specimen of the species that, in any event, only evolved in the
1
last decade of the 20 h century. Honduras mentions three criminai
cases involving theft and a dispute over the ownership of a boat
190
191See HCM, para. 6.16.
See infra NR, Vol. II, Annex 13.
192See HCM, para. 6.11. Once again, Honduras resorts to a confusing narration of events.
In this case, after the customs inspector from the Department of Gracias a Dios states that
there have been exports of fish caught around the area in dispute "since 1970," the
Honduran document goes on to state that: "The Customs Supervisor further confirms that
Honduran fisheries exports have been taking place since0." The fact that Honduras has
been exporting fish since that date is totally irrelevant to this case. This makes one think
that the purpose of stating thiso give the reader the impression that exports of Honduran
fish caught in the cays goes back as far as 1940.See infra Chap. VI.
193See HCM, para. 6.15.
194See HCM, para. 6.18.
195
See HCM, para. 6.19.
75 which took place between 1996 and 1998 in Puerto Lempira. No
further pertinent details are given to establish jurisdiction, such as
the possible nationality or residence in Honduras of the people
concerned or whether the goods in question were found in that
country. 196 Similarly, sorne decisions are mentioned regarding
compensation for work-related accidents involving divers. In these
cases, jurisdiction may be based on severa) criteria such as, for
example, the flag of the ship 197re the crewmember worked and the
residency of the ship owner. In ali the cases cited, the ships were
Honduran and based in Guanaja, the Bay Islands, where the ship
owners resided. No details are given as to the location of the
accidents, which may have been north of the area in dispute.
5.11 These and other supposed effectivités presented by Honduras are
amply disqualified infra, Chapter VI. For present purposes it can be
pointed out that given their dates, the witness statements presented
by Honduras are irrelevant in terms of asserting and confirming
Honduran sovereignty and jurisdiction.
0. NOHONDURAN EFFEC11VITÉS EXISTREGARDING ECONOMIC ACTIVITY INTHEAREAIN
DISPUTE
5.12 The second tier of the Honduran effectivités refers to the regulation
of economie activities in the area in dispute, primarily the
198 199
exploration and exploitation of oil and gas and fisheries.
/. Concessions for oit and gas exploration
5.13 Honduras argues that her concessions for oil exploration have
1
always been north of the 15 Parallel and Nicaragua' s south of that
Parallel. From that she draws the conclusion that the 15 h Parallel is
200
the boundary acknowledged by both parties.
5.14 Regarding her concessions Honduras claims to have granted 21
concessions for the exploration and/or exploitation of oil and gas
between 1955 and 1983. Nicaragua, she states, never objected to any
of these. 201Honduras does not go into any further detail about her
considerations concerning the Honduran practice.
196
See HCM, para. 6.20.
197See HCM, para. 6.22.
1xSee HCM, paras. 6.24-6.28. See also, paras. 4.26, 7.18-7.19.
199See HCM, paras. 6.29-6.50. See also paras. 7.20-7.22.
201
201See HCM, para. 6.24.
See HCM, para. 6.26.
765.15 On the second subject, Nicaraguan concessions, Honduras places
1
these between 1968 and 1975 and states that they used the 15 h
Parallel as the northern boundary of Nicaraguan territory. 202This is
incorrect on both counts.
5.16 Nicaraguan legislation on the exploration of gas and oil began with
the General Law on Exploitation of Natural Resources, of 20 March
203
1958, and was further regulated by the Special Law on the
Exploration and Exploitation of Petroleum of 2 December of that
204
same year.
5.17 According to the legislation enacteclin 1958, Nicaragua proceeded to
grant, beginning at the end of 1965, a series of concessions for the
exploration of oil and gas fields on her continental shelf, on both the
Atlantic and the Pacifie coasts. The result of this activity was "the
acquisition of 25,000 km. of seismic205nes and the drilling of 24
offshore and two onshore wells." However, ali this came to an end
in 1979. Explorations ended and wells were closed without the
resources found leading to the initiation of commercial exploitation.
5.18 The first requests for concessions in the area north of Nicaragua
were for the Pure Oil Company of Central America and date from 18
December 1962. Three of these, called Pure II, Pure III and Pure IV
were located on Nicaragua's continental shelf in a continuous and
successive manner. The western limit for Pure II was the line of the
Nicaraguan coast. The eastern limit of Pure IV was at meridian 82°
15' W. The common southern limit of the three areas was located on
Parallel 14°30' N. The interior limits between areas II and III and III
and IV were set at mericlians 82° 55' W and 82° 35' W. However,
the northern limits of the three areas were not defined. In these three
cases, once the farthest southeastern point was established, they
extended toward the North "to the intersection with the borderline
with the Republic of Honduras, which remains undefined"; reaching
that point, the line would head directly West until it reached the
206
meridian fixing its northwestern limit.
202See HCM, para. 6.27.
203Decree number 316, of 20 March 1958, La Gaceta, Diario Oficial, N° 83, of 17 April.
204roduced in NR, Vol. Il, Annex13 a.
Decree number 372, 2 December 1958, La Gaceta, Diario Oficial, No278, 3 December.
Reproduced in NR, Vol. Il, Annex 13 b.
205See M. DARCE et al., "New Concepts Point Toward Oil, Gas Potential in Nicaragua,"
Oit & Gas Journal, February 7, 2000, p. 70.
206Decree N. 33-DRN, 30 November, 1965. See excerpt from this decree and resolution in
Annex 14.
775.19 The company requesting the concession noted that due to the lack of
definition of the boundary with the Republic of Honduras, it could
not verify the size of the concessions Pure II, Pure III and Pure IV.
Because of this, it asked "for the purposes of investment and the
deposit of a guarantee stipulated by Articles 12 and 38 of the Special
Law on Exploration and Exploitation of Petroleum" that its legal
obligations be established in relation to a determined "conventional
area," with the understanding that this would be revised and
modified "following the date when the borderline is determined, and
understanding as incorporated into these concessions granted... those
hectares that complete the maximum area allowed by law." 207 The
Government of Nicaragua granted the concessions on the terms
requested.
5.20 These provisions contrast with the exact definition of the continental
land area in the Pure I concession. Pure I goes west from the
coastline up to Meridian 83° 30' W. Its northern limit is stated as "at
the intersection with the border line with the Republic of Honduras
at the mouth of the Coco River," at which point it follows "the
borderline up river on t208Coco River to its intersection with
Meridian 83° 30' W."
5.21 Later on, the rights of the Pure Oil Company of Central America 209
were transferred to the Union Oil Company of Central America.
Given that the concession would expire on 3 March 1972, Union Oil
renewed its requests for concessions on 25 February 1972, under the
same terms but now with the names Union Il, Union III and Union
IV. The lack of definition of the boundary with Honduras is
210
repeated, as weil as the consequences of the same.
207See in NR, Vol. II, Annex 13.b Special Law on Oil Exploration and Exploitation. Arts.
208nd38.
The Government of Nicaragua granted the concessions on the terms requested, setting a
"conventional area" for the purposes of investment and the deposit of a guarantee
establishedby Decree N° 33-RDN, of 30 November 1965. Excerpts from this decree are
reproduced in NR, Vol. II, Annex 14.
209Decree N° 73-DRN, of 5 February 1968, which benefited from an extension (Decree No
210-DRN, 3 January 1969.
The Government of Nicaragua granted the new concessions as requested, through
Decree N° 192-DRN, of Il May 1972, authorizing operations to start with Resolution N°
368-DRN, of 19 May that same year. These concessions were extended for three years
through W 78-DRN, of 15 March 1975, and Resolution W 121-DRN, of 7 April 1975. In
1978 Union Oit kept the same areas and concession system for three years (Decree No206-
DRN, of 23 June, and Resolution N° 246-DRN, of 22 July). Excerpts from these decrees
and resolutions are reproduced in NR, Vol. II, Annex 15.
785.22 On 28 January 1966 Mobil Exploration Corporation requested an
exploration area contiguous to Pure IV that it called Mobil One. This
area was in the shape of an inverted L as its eastern boundary at
Meridian 81° 54' W went south of Parallel 14° 30' N (base of the
Pure concessions) to Parallel 14° 11'40" N. From that point it headed
west to the intersection with Meridian 82° 25' W, and theo went
northward until211 reached the base of Pure IV. Mobil was granted
the concession and kept it until 1973.
5.23 Contrary to Pure, Mobil One located its northern limit at Parallel 14°
59' 08" N. However, once Mobil abandoned oil exploration in the
Caribbean in 1973, Union Oil, which bad already taken over the
Pure concessions, extended operations to and took over Mobile One,
212
dividing it into two areas Union V and Union VI. Instead of taking
on the northern limit of Mobil One, these concessions followed the
criteria of Union's other concessions (II-IV) which bad formerly
be1onged to Pure. Since "the border line with the Republic of
Honduras bas yet to be defined" it does not detail the northern limit
of the concessions claimed but rather adopts the "conventional area"
to be revised and modified, "following the date when the borderline
is determined" and "understanding as incorporated into these
concessions granted... those hectares that complete the maximum
area allowed by law."
5.24 In sum, the whole of the Union concessions (II-VI) comprise a front
of over one hundred and thirty kilometers in length from the coast to
meridian 81" 54' W with a northern limit that was left open due to
the Jack of definition of the boundary between Nicaragua and
Honduras beyond the acknowledgement of Parallel 14° 59.8' N as
the final point of the land boundary.
211
Decree N° 38-DRN, of 3 May 1966. Excerpts from this decree are reproduced in NR,
Vol. Il, Annex16.
21Union Oil requested on 20 November 1973 the northwestern portion of Mobil One. The
Government of Nicaragua granted this concession, which became known as Union V, with
Decree ~ 25-DRN, of 19 February 1974, and Resolution No75-DRN, of 20 March of the
same year. Reproduced in NR, Vol. II, Annex 17. Months 1ater, on 26 September 1974,
Union Oil requested an additional area (Union VI) that included the rest of Mobil One and
extended a bit beyond it, as it's south western corner was the intersection of Meridian 82°
25' W with Paralle1 14°08' N, projected toward the east isobath 100 fathoms, "on the edge
of the continental shelf''(Decree73-DRN, of 9 October 1974 and Resolution N° 112-
DRN, of 14 January 1975). The Union V and Union VI concessions were extended in 1977
(the formerby Decree N° 170-DRN, of 11 February, and Resolution N° 207-DRN, of 27
April, and the latter by Decree N° 190-DRN, of 22 November and Resolution N° 225-DRN,
of 15 December). Excerpts from these decrees and resolutions are reproduced in NR, Vol.
II, Annex18.
795.25 There is no basis to assert the existence of effectivités relating to the
maritime delimitation deduced from the oil and gas exploration
213
concessions made by the Parties. Thus, the plates (11, 12, 13,21
and 22) with which the Honduran Counter-Memorial attempts to
illustrate graphically the oil concessions in the area do not correctly
reflect reality, and indicate a nonexistent boundary.
5.26 One of the documents provided by Honduras to support her point of
view on the "Coco Marina Joint Operation" clearly shows that, in
1969, Honduras was still studying what should be the boundary of
the continental shelf with Nicaragua, and this study was not followed
up by any proposais to Nicaragua on this subject in the following
years. In fact, the (undated) Opinion of an "Interstate Study
Commission" which, in spite of the name, was a Honduran
commission, asserted that: "the line proposed with Honduras to
serve as a maritime boundary with the Republic of Nicaragua is the
parallel that passes through the final point of the terrestrial line..."
(emphasis added). Both the point mentioned, as weil as points 2 and
3 of the Opinion, reflected the Honduran Commission's opinion on
what should be the Honduran claim of 14° 59' 08" N as a boundary
with Nicaragua in relation to oil concessions; and nothing else. This
did not lead to any kind of diplomatie exchange between Honduras
214
and Nicaragua.
5.27 In the end, even if one did accept, for the sake of argument, the
importance of the Honduran effectivités regarding the exploration of
1
hydrocarbons up to the 15 Parallel, their importance in determining
the boundary of the maritime areas with Nicaragua would depend: 1)
on their being considered as an element of a tacit agreement between
the parties and this position would have to be adopted against,
among others, the evidence that Nicaragua granted concessions with
no limit to the North because there existed no maritime boundary
with Honduras; or, 2) on its scope as one of the relevant
circumstances for maritime delimitation. This will be dealt with in
Chapters VII and IX.
213
See infra Chap. VI, where the licensing practice is considered in relation to the issue of
214ereignty over the islets and cays in the area in dispute.
Again, Honduras manipulates the documentation she provides by asserting (HCM, para.
6.28) that the"Opinion" of the Commission "stated that the maritime boundary with
Nicaragua was at14°59' 08"," which is untrue, as can be confirmed (HCM, Vol. 2, Annex
109).
80 2. Thefisheries
215
5.28 lt is at this stage necessary to examine fisheries. Fishing activity
between the islands of Roatân and Guanaja and the 15 1hParallel have
been subject, to Honduran regulation "for many decades," with no
16
evidence that Nicaragua has done the same? And, at least since the
1930s, Honduran-registered fishing boats based on these islands
were ac17ve in the vicinity of Savanna Cay, Bobel Cay and Rosalind
Bank?
5.29 These statements have no foundation. Even if true, no precedent is
set by the fact that Honduran fishing boats worked in the areas
around Savanna Cay or Bobel Cay in a period when fishing on the
high seas was open to ali. Probably those same boats also fished
south of the 15 Phrallel, along with vessels from Jamaica and the
Cayman Islands, which, along with Nicaraguan vessels, frequented
1
the whole area with no regard for boundaries, be they the 15 h
Parallel or any other tine.
5.30 To bolster her claim, Honduras mentions a few reports on fisheries.
One such report, from the Fish and Wildlife Service Department of
the Interior of the United States and the Office of the Coordinator of
Inter American Affairs of the United States (1943) is called "The
Fisheries and Fishery Resources of Honduras". lt describes,
according to the Counter-Memorial, the fishing potential "offshore
Cape Gracias a Dios" as - it cites - "a great expanse of shallow
water with many cays, reefs and shoals... A number of important
banks occur in this section. They include Gorda Bank, Rosalind
Bank, Serranilla Bank, Thunder Knoll and others.'.21 8
5.31 However, the authors of the report limit themselves to an evaluation
of resources without making any statement on matters of
sovereignty, which in any case was the ]east of their concerns in
1943 given the narrow breadth of territorial sea accepted at that time.
The list of the banks mentioned in the report includes Serranilla,
219
over which Honduras has already renounced any claim.
5.32 The other reports cited are from a series of FAO projects. One was
the Regional Project of Fishing Development in Central America.
Honduras refers specifically to the reports developed on the occasion
of the exploratory and simulated commercial fishing operations
215
See HCM, paras. 6.29-6.50. See also paras. 7.20-7.22.
216See HCM, para. 6.47.
217See HCM, para. 6.30.
218See HCM, para. 6.31.
219See infra Chap. VI, referring to this report with regard to the islets and cays in the area
in dispute.
81 carried out by FAO between December 1970 and October 1971.
Honduras asserts that this project "treat(s) the area as falling within
220
the territory of Honduras."
5.33 This statement is entirely inaccurate. The documents mentioned
offer a good deal of information on the Nicaraguan Rise (Saliente de
Honduras-Nicaragua or Promontorio de Nicaragua) and its fishing
resources, but nothing included therein can be construed as for or
against the territorial claims of the countries in the region.
5.34 The project was the result of a regional initiative financed by UNDP
and implemented by FAO. Before 1940, with the exception of tuna
fishing carried out by sorne foreign vessels, industrial fishing in
Central America was non-existent. The interest in industrial fishing
arose in the fifties as a response to the demand for shrimp in the
United States. lt was in this context of predominantly traditional
subsistence fishing with very simple boats, low productivity and
often insufficient and unsanitary handling of the catch, that the
countries of the region requested (January 1963), through the
Economie Cooperation Committee, technical and financial
assistance of the UNPD Special Fund for a program to develop
regional fishing.
5.35 In the "Report on Project Results," issued by the FAO in September
1972, it specifically notes that: "The names employed in this
document and map and the way the presented data appears does not
imply, on the part of the United Nations or the United Nations
Organization for Agriculture and Food, any judgment on the legal or
constitutional situation of any of the countries, territories or
maritime areas cited, nor regarding border delimitations." 221
-0 See HCM, para. 6.32. See also HCM, Vol. 2, Annex 163, wh1ch reproduces only a few
passages of the account of one of the explorations carried out by the "Canopus" under
Captain Marc Giudicelli between May and November 1970.
221Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panama: Regional Project
for Fishing Development in Central America: Report on Project Results; Conclusions and
Recommendations (FI: DP/RLA/65/030; Final Report, Rome, September 1972), p. iv. See
infra Vol. Il, Annex 19. Honduras (HCM, para. 6.67) again mentions the FAO/UNDP
program about fisheries in Central America when arguing for effectivités in the field of
scientific research. There it presents very biased quotations from one of the reports (HCM,
Vol. 2, Annex 163). Honduras cannat use this Program's results to testify to her claimed
rights, as the documents in question expressly refrain from making any statement on
political and territorial disputes.
825.36 On the other hand, when the Project was implemented Honduras- in
222
contrast to Nicaragua - had not passed legislation claiming fishin~
jurisdiction beyond the twelve-mile boundary of the territorial sea.Z 2
The "Report on Project Results" confirms the open sea system in
effect in Honduras even in the early seventies. 224 Because of this it
would be difficult to speak of the formation of a boundary line over
a maritime area under a non-existent national jurisdiction. Moreover,
the part of the project devoted to the study of legislation of the
region's countries does not mention the existence of maritime
boundaries between them.Z 25 Although speaking in lay terms of
"Honduran" or "Nicaraguan waters," in legal terms the underlying
concept is "high seas". The same report, for example, in evaluating
the snapper population in the eastern part of the continental shelf of
Honduras and along the continental shelf of Nicaragua, states: "This
population is already exploited by foreign vessels, which shows its
export value. lt could also be exploited by Central American
226
ships."
5.37 The other FAO report, in collaboration with UNPD and IDB, was a
program on "Investigation and Commercial Evaluation of the Main
Maritime Fishing Capacities of Honduras in the Northern Zone".
This report was in response to a request for financial assistance from
the IDB made by the Honduran National Investment Corporation
(CONADI). lt was the Honduran CONADI that included in the
project, which was implemented after the controversy between
Nicaragua and Honduras had begun, the references to Half Moon or
227
Thunder Knoll. The Ho228ran Government also states that this
FAO report, dated 1985, "refer(s) to this area, treating it as falling
within the territory of Honduras." 229 Once again, this report does not
222
In Nicaragua Decree N° 1L, 5 April 1965, provided for a national fishing zone including
waters between the coast and a line parallel to the same, 200 nautical miles out to sea. Any
fishing activity within this area was subject to the General Law on the Exploitation of
Natural Resources and complementary provisions (Special Law on the Exploitation of
Fishing, Decree N° 557, 20 January 1961). Reproduced in NR, Vol. II, Annexes 13.a 13.c.
223 13.d.
Honduras applied the Fishing Law of 9 June 1959 (Decree N° 154). See J. L.
GONZÂLEZ L6PEZ, "Estudio de la legislaci6n pesquera y relacionada", Proyecto
Regional de Desarrollo Pesquero en Centroamérica,V Reunion de Trabajo, San Joséde
Costa Rica, 28-30 de noviembre de 1967, CA/FI/67/26, San Salvador, 1968, pp. 6, 32.
Reproduced in NR, VoL 2, Annex 20.
224
225See para. 2.6.4 of the Report (NR, Vol. Il, Annex 19).
See CA/FI/67/26 of the Project. Reproduced in NR, Vol. II, Annex 20.
226See para. 2.2.3.3. of the Report (NR, Vol. Il, Annex 19).
227See HCM, Vol.2, Annex 161.
228See HCM, Vol. 2, Annex 158, which provides sorne information on this.
229
See HCM, para. 6.33.
83 bring Honduras closer to her objectives, given its date and, above ali,
the political neutrality imposed by its very nature. 230
5.38 Honduras also speaks of her authorities granting fishing concessions
to companies "for severa) decades." 231 However, the merely two
232
documents it provides, from 1962 and 1978, only show that the
concessionaires are authorized to fish in ali the areas of Honduran
sovereignty from the Bay of Puerto Cortés to the mouth of the Coco 233
River ("in a northbound direction," the 1962 document specifies),
and no where does it state that the 15 Parhllel is the boundary with
Nicaragua.
5.39 Honduras also invokes having issued logbooks (bitacoras) to
fishermen since the seventies that include areas presently in
dispute. 234 lt must be presumed that the first ones were issued in
1978 since the ones reproduced in Volume 3, plate 31 of the
Counter-Memoria are from this year and the Honduran Navy had
235
been established shortly before. But these logbooks in the best of
cases could only be proof of Honduran aspirations of extending her
sovereignty and not that she was the sovereign. The phrase "in the
best of cases" is apt because of the two logbooks reproduced in the
Counter-Memorial, one confuses parallel 16° with parallel 15°,
includes areas south of this parallel and scarcely goes a few minutes
beyond meridian 83° W, and the other logbook goes amply beyond
meridian 80° W. The conclusion can only be that these logbooks
either fall short or go beyond the present claims of Honduras.
E.HONDURASHASNOOTHER EFFECTIVITÉS lNTHEAREAINDISPUTE
5.40 As a matter of law it must be observed that marine or air patrols on
the high seas are not equivalent to an effectivité, but rather the
exercise of freedom of navigation in areas where the presence of
such units provides security and facilitates the protection of general
interests of the State. Specifically, the participation in operations of
230The same is true of the other report mentioned in the HCM, p. 104, footnote 63, of
which sorne passages are reproduced in the HCM, Vol. 2, Annex 160.
231See HCM, para. 6.43.
231See HCM, Vol. 2, Annexes 119 and 120.
233
Applying the Honduran logic, this would mean to resort to a meridian originating at the
mouth of the Coco River.
234See HCM, para. 6.44.Honduras defines the "bitacora" as "a document which indicates
the area in which fishing is permitted and which is to be returned to the Honduran
authorities with an indication of the quantity and type of the fish which have been caught as
weil as the location".
235
See para. 5.42 below.
84 Search and Rescue is absolutely irrelevant as regard236 claim over
the continental shelf or exclusive economie zone.
5.41 As a matter of fact, Honduran naval patrols fail to improve the237age
of the effectivités upon which Honduras bases her claims. In the
first place, these patrols could only have begun in 1976, as the
238
Honduran Navy did not exist prior to that year. As a result, it is
difficult to imagine how Honduras might have, before that date,
enforced her claimed sovereignty over the cays and adjacent waters,
or applied her fishing or immigration laws that she boasts about and
for which she provides no evidence. Furthermore, according to the
evidence provided by Honduras itself, the patrols only took place
occasiona anldl~it was only after 1983 that they occurred
23
regularly.
5.42 It should not be overlooked that the date of the establishment of the
Honduran Navy and the beginning of any possible patro40 coïncides
with the Nicaraguan proposai to delimit maritime areas?
5.43 Hondura1 claims that it is she and not Nicaragua that patrols north of
the 15 h Parallel. Honduras further claims that she is the one that
enforces fishery laws, even against Nicaraguan boats, and has filed
in support of this assertion, documents purporting to record events
that occurred on dates as recent as 23 September 2000 241 and July
2001, well after the Nicaraguan Application was filed on 8
December 1999.
5.44 Apparently, Honduras does not consider the seizure of Honduran
boats by the Nicaraguan coastguard as an act of State that confirms
Nicaragua's exercise of sovereignty and jurisdiction. Rather,
borrowing the words of a very convenient "witness", these actions
were only meant "to bother" legitimate fishing activity authorized by
Honduran authorities. 242 But, how could Nicaraguan coastguards
1
seize and "bother" Honduran fishermen north of the 15 h Parallel if,
according to the witness statements of other fishermen provided by
243
Honduras, they had not been seen in that area for decades? Those
statements are contradicted by others, also presented by Honduras,
stating that Nicaraguan patrol boats operated north of the 151h
236See Gulf of Maine, ICJ Reports, 1984, pp. 339-343, para. 230-238; Libya-Malta, /CJ
Reports, 1985, pp. 40-41, para. 49; Eritrea/Yemen (Phase 1)Award, para. 286.
237
238See HCM, paras. 6.60-6.63.
239See HCM, para. 6.62.
See HCM, para. 6.48, and Vol. 2, Annex 84.
24See below Chap. VII para. 7.31.
241See HCM, Vol. 2, Annex 141.
242See HCM, Vol. 2, Annex 66.
243See HCM, paras. 7.23-7.25). For more on these testimonies see infra Chap. VI.
85 244
Parallel and carried out seizures for illegal fishing in 1973. Similar
witness statements are included in this Nicaraguan Reply. 245
5.45 Honduras suffers selective amnesia and this leads her to completely
1
ignore the seizures of Honduran boats north of the 15 h Parallel by
Nicaraguan coast guards, although this is amply illustrated by the
246
exchange of diplomatie notes between the parties. Honduras
unabashedly maintains, based on the fishermen's statements, that
Honduran boats seized for fishing llegally south of the 15 1h parallel
are escorted by Nicaraguan coastguards to the parallel and released
there.247
5.46 The witness statements gathered by Nicaragua reveal that in the
seventies Honduran units were not patrolling in the disputed area.
Thus, Mr. Arturo Mohrke Vega, a member of the Navy of War of
the National Guard, in which he reached the rank of colonel, and
who operated out of the Port of El Bluff, stated under oath that in
1975 "one of his responsibilities was the purchase of four (4) Dabur
type and two Debora-type speedboats that were custom built in
244 See HCM, Vol. 2, Annex 90 (Deposition by Mr. Eri Melvin Hide Moore): To the
question "Do you know if Nicaraguan patrol boats have entered the area north of parallel
fifteen, and on what date and year did those occur," the interested party, a Honduran
fisherman living in Guanaja, Bay Islands, responds: "Yes, they have entered the area north
of paralie! fifteen in the year nineteen seventy-three (1973), they captured me on the vesse!
DEFENDER, and they tried to force me to sign a document which stated that I was fishing
245Nicaraguan waters, which was not true and I did not agree to sign."
See NR, Vol. 2, Annexes 21 and 22. Herman Emmanuel Presida, ship captain, states
under oath, "...At that time I was twenty years old and there were six 1obster boats, we
fished in the South Cay and there were no Honduran patrols there, but the Nicaraguan coast
guard would come by... I remember the men in charge of the Coast Guard, one man's last
name was Brenes, and another one's was Solis ..." Similarly, Hayword Clark McLean, a
ship captain, states under oath: 'That he has been working fishing in the Caribbean Sea
since nineteen seventy-five ... Fishing for lobster around the Half Moon Reefs, Alargado
Cay, South Cay, which are north of Parallel 15, where Nicaraguans patrolled, which is why
they were never bothered ... In the eighties he left for Colombia and continued his activity in
that same area on Colombian vessels that sent us to Nicaragua to fish in the above
mentioned area, and we had to be on the watch for Nicaraguan patrols... However, in recent
years Honduran authorities have devoted themselves to obstructing the work of Nicaraguan
fishermen, and there have been sorne seizures of boats and fishermen, and because of this
sorne of them currently avoid fishing in that zone."
246
See NM, V, para. 24. Notes 32 to 34 gather a series of relevant diplomatie notes,
reproduced later in Vol. II (Annexes 11-13, 15-16 and 21-69). At !east fourteen of the
Notes that Honduras contributes in the CM, sent by the Foreign Minister to his Nicaraguan
counterpart orto the Nicaraguan Ambassador in Tegucigalpa, are also related to the seizure
of fishing boats and incidents between naval and air units of the Parties in the area in
dispute: See Notes from 9 February, 7 and 14 November, 12 and 16 December of 1983, 18
June 1985, 30 January and 3 July 1987, 22 and 30 October, and 5 December 1991, 27
December 1995, and 9 January and 7 August 1997 (HCM, Vol. 2, Annexes 26, 32-35, 41,
43-47 and 56-58).
247See HCM, paras. 6.49, 7.24. See infra Chap. VII.
86 Israel for the National Guard of Nicaragua. Sorne of these were
assigned to operate in the Nicaraguan Caribbean Coast, to carry out
patrols in areas around parallel seventeen (17). At no time were there
conflicts either with fishermen or between the Navies of War from
both countries, but both organizations maintained frequent radio
communications." Colonel Mohrke adds that not only he, but also
"other boat captains from the Navy of War and traditional and
commercial fishermen were sure that the maritime border between
Nicaragua and Honduras was not parallel fifteen (15), but rather the
oblique line that began at the mouth of the Coco River in the
Caribbean sea and proceeded northeast. That the Hondurans were
fully aware of this, both the Navy of War and fishermen, who did
not navigate or work south of that line. That everyone was aware
that the cays and banks that were south of that line belonged to
Nicaragua, but not the Vivorillos and Cajones Cays, which belonged
to Honduras." 248
5.47 Businessman Mr. Jorge Morgan Britton, a self-made man, who
began his fishing activities in the Caribbean Sea as a traditional
fisherman in 1960, confirms this testimony. Thirty years later he
owned the largest fleet of lobster boats in the region. According to
the sworn statement of Mr. Morgan - who lived outside of
Nicaragua between 1980 and 1990 due to the political changes in the
country - "l'hat during the fourteen (14) years from nineteen sixty
(1960) to nineteen seventy-four (1974) during which he worked as a
crew member and captain of fishing boats, it was usual for said
boats, which operated with Nicaraguan fishing licenses, to carry out
their work in the north up to parallel seventeen (17), in the areas near
Rosalinda Bank, and that the product of the fishing activities were
unloaded at the processing plants that were then located in the area
of Bluefields and El Bluff in Nicaragua... That ... from nineteèn
seventy-four (1974) to nineteen eighty (1980) he did not participate
directly in fïshing activities in open sea because he was managing
his company... but he is also aware that these vessels operated
normally in the north up to parallel seventeen (17) as part of the
Nicaraguan fishing zone in the Caribbean Sea. He can confirm this
because as owner of this company, it was his duty to constantly
monitor the positions of his vessels and ali the daily details that are
part of fishing activity Between 1960 and 1980, Mr. Morgan goes
on to say, "there were also fishing vessels from other countries such
as Panama and Honduras that operated in the Nicaraguan Caribbean
Sea under a commercial fishing exploitation license issued by the
Nicaraguan authorities to a certain processing plant located in El
Bluff, and later on Corn Island. The owners of these vessels made
248
See NR, Vol. Il, Annex 23.
87 contracts with the Nicaraguan processing plant... lt was quite
common for said foreign vessels that operated under a Nicaraguan
license to also carry out fishing activities up to parallel seventeen
(17)..." Mr. Morgan then states that "up until nineteen seventy-four
(1974), when he was fishing in that area up to parallel seventeen
(17), in which it was cornmon to see Nicaraguan boats working
alongside foreign boats operating with Nicaraguan licenses, they
never detected any presence of Honduran civilian or military
authorities and he never knew of any problem between these vessels
249
and Honduran authorities ..."
5.48 Incidents arose later, in the eighties when, as reflected in the
diplomatie notes, Honduran units entered waters that were regularly
patrolled by the Nicaraguan Naval Force, leading to sorne seizures in
the area in dispute, as weil as confrontations between the
coastguards from the two countries. Navigation logs confirm this.
The documents provided by Honduras on this subject are
significant?m It is revealing that Honduras accuses Nicaragua of not
providing evi251ce of having patrolled north of the !5th Parallel
before 1982, when the first of the documents supplied by
Honduras is dated the 18thof September of that same year.
5.49 The reference to air patrols is made without providing any further
information. Honduras wrongly alleges that "There are no patrols by
the Nicaraguan authorities, and there have never been such patrols"
north of Parallel 15° N. 252 This contradicts, among other incidents
reflected in the correspondence, the protest note sent by Honduras on
10 October 1984 over the operation plan for search and rescue of
persons missing at sea and 1aircraft (SAR) presented by Nicaragua
at the 35th meeting of Directors of Civil Aviation of Central
253
America. The Nicaraguan plan included operations north of Cape
Gracias a Dios, up to Parallel 15° 18' N and Meridian 82° 14' W,
following the azimuth of 21 oE for a distance of one hundred and ten
kilometers. The Honduran note confirms that Nicaragua exercised
activities in the area north of the 15 h Parallel.
1Y See NR, Vol. Il, Annex 24. Similar content is found in the testimony of Mr. Leonel
Aguirre Sevilia, who during the seventies was General Manager of the business that owned
250 largest shrimp tleet in the region (NR, Vol. II, Annex 25).
See HCM, para. 6.62.
251See HCM, para. 6.63.
252See HCM, para. 7.23. See also para. 4.26.
253
See HCM, p. 46, footnote 61, and Vol. 2, Annex 39.
88 F.CONCLUSION
5.50 The Honduran argument is contrived. The adjectives used in the
Counter Memorial are so abundant and resounding that they end up
being counterproductive. Nothing can give these arguments the
strength that they intrinsically lack. Honduras repeats the same
documents, and the same elaborate witness statements over and over,
to back up those effectivités that254e presented as the heart of an
overwhelming, unquestionable practice that, in fact, does not
exist.
254 Honduras claims to provide overwhelming longstanding evidence of Honduran
sovereignty and jurisdiction (HCM, paras. 6.46 and 6.5). Similarly,ara. 6.7: "In this
case the evidence of the exercise by Honduras of sovereignty over the islands and
surrounding waters north of thethparallel is compelling and it is longstanding."
89 CHAPTERVI
TITLE TO THE ISLETS AND ROCKS
6.1 Honduras submits that Nicaragua's claim in large part is premised
on an unstated invitation to the Court to ignore entirely the islands,
reefs and banks which are located to the north of the parallel of 15°
55
N? Honduras even ventures to assert that this approach no doubt is
based on Nicaragua's recognition that those islands, reefs and banks
have been treated by Honduras as part of her national territory since
the 19thcentury ? 56Honduras further maintains that Nicaragua has
very little, if any knowledge of the islands, banks and reefs in
question and that Nicaragua has not protested the longstanding
application by Honduras of her laws and regulations to activities on
57
and around the islands?
6.2 Honduras submits that 'the evidence of the exercise by Honduras of
sovereignty over the islands and the surrounding waters north of the
258
15thparallel is compelling, and it is longstanding.' A large part of
the Counter-Memorial tries to build a case that Honduras has a valid
title to these features. However, if this evidence is closely
scrutinized, little if anything remains of it. Broadly speaking, the
evidence of Honduras cao be divided into two categories. Material
from before the critical date presented by Honduras does not contain
any proof of her alleged sovereignty over the cays in question. Most
materials presented by Honduras concern the period after the critical
date. A significant partof these materials is even related to events in
the second half of the 1990s or even after the filing of the
Application instituting the present proceedings. These latter
materials make at times reference to the cays in question. As will be
shown, most of this material is irrelevant to the establishment of a
title to the islets in dispute. Otherwise, to the extent this evidence is
self serving it should not be taken into consideration by the Court.
6.3 Honduras herself seems to be uncomfortable about the Jack of
conclusive evidence from before the critical date as defined by
Honduras. Honduras tries to resolve this problem by surreptitiously
linking events which took place after the critical date to events
before that date. As an example, reference cao be made to an
255
256HCM, Vol. l, para. 1.22.
257HCM, Vol. l, para. 1.22.
258HCM, Vol. l, para. 2:.7.The former pointis addressed in Chap. Ill.
HCM, Vol. l, para. 6.7.
91 259
Arrangement between Honduras and the United States of 1976.
This Arrangement does not contain any definition of the territory of
Honduras whatsoever. Nonetheless, Honduras asserts that activities
in the islets in dispute included the installation of triangulation
markers 'pursuant to the 1976 Honduras/United States
Arrangements'. 260 The quotation omits to mention that these markers
were only installed in 1981, at which time Nicaragua was involved
in an armed conflict with inter alia Honduras and the United States.
(See above Chapter V, paragraph 5.4 (iv) The Annex containing the
relevant information repeats this approach. In its title it only includes
the year 1976, and not the year of installation, which is only
mentioned in the text of the Annex? 61In view of the poverty of the
Honduran evidence, it is not credible that Honduras reproaches
Nicaragua that Nicaragua never regulated activities in the area. 262As
will be shown in Section II of this chapter, this is also an incorrect
rendering of the pertinent facts. The Honduran assertion that no third
State or other party has recognized Nicaraguan sovereignty or
263
jurisdictio264ver the area north of the parallel of !5° N is also
incorrect.
6.4 The following analysis will first of ali address the evidence in
respect of the islets in dispute that has been presented by Honduras.
Generally, the order in which issues are presented in the Counter
Memorial will be maintained in the present Reply. Next, the
evidence of a Nicaraguan title to the islets will be set out. As will
become clear, this analysis demonstrates that Honduras has not
offered any proof of a title to the islets, notwithstanding Honduras'
indignant assertion that Nicaragua has not dealt with this issue in the
Memorial. The evidence presented in the Reply will show that the
title to the islets rests with Nicaragua.
6.5 Paradoxically, at the same time that Honduras asserts that Nicaragua
has not dealt with the issue of title to the islets, she also accuses
Nicaragua of 'surreptitiously attempting to transform a delimitation
case into a litigation on the attribution of sovereignty over insular
265
features' . However, it is rather Honduras which seeks to achieve
such a transformation, failing to address most arguments in respect
of maritime delimitation contained in the Memorial. 266 The
25
yHCM, Vol. 2, Annex 152.
260HCM, Vol. 1, para. 6.70.
261HCM, Vol. 2, Annex 154.
262HCM, Vol. 1,para 6.77.
263HCM, Vol. 1,para 6.75.
264See further infra para. 6.1 14.
265
266HCM, Vol. 1,para. 4.32.
See further NR, Chaps. II and VIII.
92 Memorial has already assessed the role of ali the islands in the area
of relevance for the delimitation. The Counter-Memorial leaves
Nicaragua no other choice but to deal with the issue of sovereignty
over the islets in much more detail in this Reply. It is to be regretted
that this requires an analysisof a great deal of evidence presented by
Honduras that is neither relevant to the issue of sovereignty over the
islets in dispute nor to the delimitation of maritime zones.
1. The bases of the Honduran claim
6.6 The Honduran claim to the islets in dispute is based on a number of
considerations:
i)uti possidetis iuris;
ii) the Arbitral Award of the King of Spain of 1906;
iii) the conduct of Honduras and Nicaragua; and
iv) recognition of a Honduran title by third States and
international organizations.
6.7 lt is appropriate, at the outset of this section evaluating acts of
Honduras that allegedly have a bearing on the question of title to the
islets in dispute,o recall the standard such acts have to meet and the
relationship between effectivités and the right derived from a legal
title.
6.8 In the Frontier Dispute (Burkina Faso/Republic of Mali) case, the
Court pronounced itself on the latter issue, observing that:
"The role played in this case by such effectivités
is complex, and the Chamber will have to
weigh carefully the legal force of these in each
particular instance. lt must however state
forthwith, in general terms, what legal
relationship exists between such acts and the
titles on which the implementation of the
principle of uti possidetis is grounded. For this
purpose, a distinction must be drawn among
several eventualities. Where the act corresponds
exactly to law, where effective administration is
additional to the uti possidetis juris, the only
role of effectivité is to confirm the exercise of
93 the right derived from a legal title. Where the
act does not correspond to the law, where the
territory which is the subject of the dispute is
effectively administered by a State other than
the one possessing the legal title, preference
should be given to the holder of the title. In the
event that the effectivité does not co-exist with
any legal title, it must invariably be taken into
consideration. Finally, there are cases where the
legal title is not capable of showing exactly the
territorialexpanse to which it relates. The
effectivitéscan then play an essential role in
showing how the title is interpreted in
267
practice. "
As will be shown, Nicaragua is the holder of the title to the islets in
dispute. This indicates that in the present case, effectivitésof
Honduras, to the extent that they actually exist, must not be given
any role in establishing the title to the islets.
6.9 The Tribunal in the Eritrea/Yemen (Phase I) arbitration observed in
respect of the intention to claim islands à titre de souverain:
"Evidence of intention to daim the Islands à
titre de souverain is an essential element of the
process of consolidation of title. That intention
can be evidenced by showing a public daim of
right or assertion of sovereignty to the Islands
as weil as legislative acts openly seeking to
regulate activity on the Islands. The Tribunal
notes that the evidence submitted by both
Parties is replete with assertions of sovereignty
and jurisdiction that fail to mention any islands
whatsoever, and with general references to "the
268
islands" with no further specificity ."
6.10 The Judgment of the Court in the Minquiers and Ecrehos case is also
relevant in this respect. The Court concluded that it:
"... does not find that the facts, invoked by the
French Government, are sufficient to show that
France has a valid title to the Minquiers. As to
the above-mentioned acts from the nineteenth
and twentieth centuries in particular, including
267
211I.C.J. Reports 1986, pp. 586-587, para. 63.
~Eritrea/Yemen Award (Phase 1),l.L.R. Vol. 114, p. 1at para. 239.
94 the buoying outside the reefs of the group, such
acts can hardly be considered as sufficient
evidence of the intention of that Government to
act as a sovereign over the islets; nor are those
acts of such a character that they can be
considered as involving a manifestat269 of State
authority in respect of the islets."
6.11 Another condition that attaches to the display of power and authority
by a State is that this be done on a peaceful and continuous basis.
The Island of Palmas case provides a weil known expression of this
doctrine. The sole arbitrator, Max Huber, noted that:
"... practice, as well as doctrine, recognizes -
though under different legal formulae and with
certain differences as to the conditions required
- that the continuous and peaceful display of
territorial sovereignty (peaceful in relation to
other States) is as good as title? 70
[..]
If, however, no conventional line of sufficient
topographical precision exists or if there are
gaps in the frontiers otherwise established, or if
a conventional line leaves room for doubt, or if,
as e.g. in the case of an island situated in the
high seas, the question arises whether a title is
valid erga omnes, the actual continuous and
peaceful display of State functions is in case of
dispute the sound and natural criterium of
271
territorial sovereignty. "
A more recent expression of the principle was expounded by the
Tribunal in the Eritrea/Yemen arbitration:
"The modern international law of the
acquisition (or attribution) of territory generally
requires that there be: an intentional display of
power and authority over the territory, by the
269
270I.C.J. Reports I953, p. 71.
271Reports of International Arbitral Awards (RIM), Vol. p.839.
Reports of International Arbitral Awards (RIM), Vol. II, p. 840.
95 exercise of jurisdiction and state functions, on a
2
continuous and peaceful basis.'m
6.12 The analysis of the evidence presented by Honduras to establish the
existence of a title to the islets in dispute shows that it does not meet
the standards set out above. Honduras has not presented any
evidence of an intention to claim the islets by showing a public
claim of right or assertion of sovereignty to the islets or legislative
acts openly seeking to regulate activity on the islets. Just as is the
case for the evidence presented in the Eritrea/Yemen arbitration, the
evidence submitted by Honduras is replete with assertions of
sovereignty and jurisdiction that fail to mention any islands
whatsoever or refer to "islands" without any further specification. As
is clear from the evidence presented by Honduras, she only started to
claim the islets in dispute after 1980, and this claim was then
immediately rejected by Nicaragua.
6.13 Nor has the display of power and authority over the area in dispute
by Honduras been on a continuous and peaceful basis. Honduras
only presents evidence in respect of the 1980s and beyond. As has
been extensively documented in the Memorial, the military conflict
in Central America during this period involving Nicaragua and
Honduras also led to numerous incidents in the offshore area in the
Caribbean Sea. 273 After the termination of this conflict, incidents
involving Nicaraguan and Honduran 274horities and fishermen have
continued up to the present day.
A. THE HISTORY OF THE DISPUTE DURING THE COLONIAL PERIOO AND THE ]9THCENTURY
AND THE RELEVANCE OF THE PRINCIPLE OF UT!POSSIDETIS lU RIS
6.14 As was argued in Chapter V of the present Reply, Honduras has not
provided any evidence that the islets which are now in dispute were
ever mentioned in the colonial period in connection with
jurisdictional limits. It was further demonstrated that the analysis of
the uti possidetis iuris of 1821 by Honduras does not contain any
proof of the existence of a title of Honduras to the islets in dispute in
the present proceedings. Finally, Chapt1r V of the Reply shows that
the practice of Honduras in the 19 1!century does not provide any
proof that the islets which are now in dispute between Nicaragua and
Honduras were considered to form part of Honduras.
272
Eritrea/Yemen Award (Phase1),l.L.R. Vol. 114, p. 1at para. 239.
274M, Chap. V.
NM, Chap. V.
96 B.THEARBlTRALAWARDOFTHEKINGOFSPAINOF 1906
6.15 The relevance of the Arbitral Award of the King of Spain of 1906
for the issue of sovereignty over the islets in dispute between
Nicaragua and Honduras is also discussed in Chapter V of the
present Reply. The conclusions of this discussion can be
recapitulated as follows:
a) The Award only established the land boundary between
Nicaragua and Honduras up to the mouth of the River Coco and
did not address the sovereignty over the islets which are
presently in dispute between Nicaragua and Honduras;
b) The Award rejected the use of parallels or meridians to establish
the land boundary. This refutes the Honduran claim that the
Award took into account the parallel of 15° N in establishing the
land boundary and excludes the possibility that this parallel was
implicitly adopted by the Arbitrator to establish sovereignty over
the islets off the mouth of the River Coco; and
c) In ber pleadings in the case before the King of Spain Honduras
did not make any reference to the islets that are now in dispute
between Nicaragua and Honduras. The boundary she referred to
in ber pleadings in that arbitration. indicates that it was proposed
without taking into account the islets off the Central American
mainland coast.
C.THE PRACTICE OF HONDURAS BETWEEN 1906AND 1960
6.16 The analysis. in Chapter VII of the present Reply in respect of the
practice of Honduras in the period between 1906 and 1960 also
provides evidence of the fact that Honduras did not consider the
parallel of15° N to be a line allocating insular territories to either
herself or Nicaragua. As was pointed out, in diplomatie
correspondence of 1928 Honduras claimed sorne cays to the south of
this parallels Honduran but not the islets presently in dispute.
97 D. LEGISLATION OFHONDURAS
6.17 Honduras maintains that her legislation expressly identifies the
275
islands, cays banks and reefs located within her maritime areas. In
this connection, Honduras cites various items of legislation, which,
however, do not identify specifie islands. For instance, reference is
made to a Decree of 1950, which proclaimed a continental shelf and
a 200 nautical mile zone. The Decree, which is not reproduced in
relevant part in the text of the Counter-Memorial or in an Annex to
it, only makes reference to 'the continental shelf of the national
territory, both of the mainland and the276lands' and 'islands of
Honduras in the Atlantic Ocean' . Even more significantly, a
Decree of 1957, establishing the Department of Gracias a Dios,
indicates that the Department does not extend to the east beyond the
mainland coast or the mouth of the River Coco. 277Thus, the Decree
proves that the Honduran Department bordering on the area of
relevance for the present delimitation did not include the islets which
are now in dispute between Nicaragua and Honduras. These islets
are located to the east of the mainland coast off the mouth of the
River Coco.
6.18 Honduras also refers to her Constitutions of 1957, 1965 and 1982.
The Constitutions do make reference to specifie islands. However,
these references are in no way helpful to the Honduran position in
respect of the islets in dispute in the present proceedings. The
Constitutions of 1957 and 1965 do mention certain islands and islets
by name, but do not include a reference to the disputed islets. Only
the Constitution of 1982, adopted five years after the dispute over
maritime delimitation became apparent, contains an express
reference to Media Luna Cay. According to Honduras, Media Luna
278
Cay is now submerged, and thus is not one of the four islands,
which she now considers to be "important islands".279 In other
words, even in 1982 Honduras did not include a reference to these
four islets in her Constitution. The fact that only in 1982 Honduras
for the first time included a reference to an islet located in the area
dispute in its Constitution is telling in itself. Other legislation of
Honduras on the law of the sea also faits to mention the islets by
275HCM, Vol. 1, para. 3.29.
276Decree N.96 of 28 January 1950 approved by Legislative Decree N. 25 of 17 January
1951, Arts. 2 and 3. An English text of the Decrees is reproduced in UNLS/LEG/SER.B/1,
277 302-303.
Decree N. 52 of 21 February 1957; reproduced in HCM, Vol. 2, Annex 63. For a fuller
discussion of this Decree see Chap. VII.
2xHCM, Vol. 1, p. 14, footnote 2.
m HCM, Vol. 1, para. 2.3.
98 280
name. In addition, sorne of this legislation is of very recent origin
(the second half of the 1990s).
6.19 In conclusion, Honduran legislation does not offer evidence of an
intention to claim the islets à titre de souverain and does not
contribute to proving the existence of a Honduran title to the islets in
dispute in the present proceedings. To the contrary, the consecutive
Honduran Constitutions indicate that Honduras only started to pay
limited attention to these islets after the critical date in ber dispute
with Nicaragua to delimit their maritime boundary.
E. CARTOGRAPHie EVIDENCE
6.20 Cartographie:evidence plays a role in most disputes concerning the
title to territory or the establishment of boundaries. The Court bas
been given ample opportunity to address the significance of such
evidence. The Chamber of the Court dealing with the Frontier
Dispute (Burkina Faso/Republic of Mali) case made the following
statement of principle on the evidentiary value of maps:
"... maps merely constitute information which
varies in accuracy from case to case; of
themselves, and by virtue solely of their
existence, they cannot constitute a territorial
title, that is, a document endowed by
international law with intrinsic legal force for
the purpose of establishing territorial rights. Of
course, in sorne cases maps may acquire such
legal force, but where this is so the legal force
does not arise solely from their intrinsic merits:
it is because such maps fall into the category of
physical expressions of the will of the State or
States concerned. This is the case, for example,
when maps are annexed to an official text of
which they form an integral part. Except in this
cleady defined case, maps are only extrinsic
evidence of varying reliability or unreliability
which may be used, along with other evidence
of a circumstantial kin281to establish or
reconstitute the real facts."
280
281See the legislation reproduced in HCM, Vol. 1, pp. 44-45, footnotes 51-55.
J.C.J.Reports /986, p. 582, para. 54.
99 This statement of principle was reconfirmed by the Court in the case
concerning Kasikili/Sedudu Island (Botswana!Namibia) (I.C.J. Reports
1999, p. 1098, para. 84).
In this latter case, the Court concluded that:
"... in the light of the uncertainty and
inconsistency of the cartographie material
submitted to it, the Court considers itself unable
to draw conclusions from the map evidence
produced in this case. That evidence cannot
therefore "endors[el a conclusion at which a
court has arrived by other means unconnected
with the maps" (Frontier Dispute (Burkina
Faso/Republic of Mali), I.C.J.Reports 1986,
p.583, para. 56).282
6.21 Honduras relies on maps as confirming her title to the islets in
dispute in the present proceedings. Honduras makes reference to a
number of maps that she considers to be relevant. 283An analysis of
these maps points out that they do not prove what Honduras would
like the Court to believe. In addition, Honduras avoids reference to
the fact that there are other relevant maps that do not include these
284
same islets. Thus, the map evidence presented by Honduras shows
the 'uncertainty and inconsistency' which led the Court in the case
concerning Kasikili/Sedudu Island (Botswana!Namibia) to reject the
relevance of the cartographie evidence submitted by the parties.
6.22 One important caveat has to be made to this general conclusion. The
analysis of the map material presented by Honduras contradicts the
Honduran assertion that there exists aline along the parallel of 15° N
dividing insular territory or maritime zones between Nicaragua and
Honduras. This map evidence has to be taken into account in
rejecting the Honduran claim in this respect. The fact that maps of a
State contradicting its position have evidentiary value has, for
instance, been recognized in the Beagle Channel arbitration 285and
86
the Eritrea/Yemen (Phase 1)arbitration?
2x I.C.J. Reports 1999, p. 1100, para. 87.
zx.HCM, Vol. 1,p. 47, para 3.36 and p. 56, paras. 3.58 and 3.59.
zx F~r sorne examples in this respect see infra paras. 6.28 and 6.29.
zxsBeagle ChannelA ward,l.L.R.Vol. 52, p. 99 at para. 142.
zxnEritrea!YemenAward (Phase 1)l.L.R. Vol. 114, p. 1at para. 374.
1006.23 Honduras points to the fact that an Official Map of Honduras of
1933 bas an inset with a line entitled 'jurisdictional maritime line of
287
Honduras', 288hich comprises the islets in dispute in the present
proceedings. Honduras fails to mention a number of relevant
points in this connection. First of ail, although the inset shows the
area in which the islets are located, without, however, indicating ail
but one of the islets, the main map does not show any of the islets, as
the area concerned is not included in it. On the other band, the map
does show the Swan Islands in a separate box, which is a
continuation of the main map. This failure to include the islets in
such a separate box indicates that they were not considered to be part
of the territory of Honduras. Secondly, the inset does not provide an
explanation of what is intended by the 'jurisdictional maritime line
of Honduras'. lt is in no way clear that this should be considered to
include a claim to insular territories. Finally, the 'jurisdictional
maritime line of Honduras' does not follow the parallel of 15° N but
extends much to the south of it. In this way it includes areas in which
undisputed territory of Nicaragua is situated. Extension of this line to
the south of the parailel of 15° N is further proof of the fact that
Honduras did not consider that the paral1el of 15° N formed a limit
between the maritime areas and insular territory of Nicaragua and
Honduras.
6.24 Honduras further submits that this 1933 map was re-edited in 1954
and 1978, with the line titled "Continental Shelf of Honduras" which
comprised ali the islands and banks lying just north of the 15th
289
parallei. The Counter-Memorial fails to provide a reproduction of
the 1978 map. As far as the 1954 map is concerned, the following
observations can be made. 290As is the case for the 1933 map, the
main map does not include the area in which the islets in dispute in
the present proceedings are located. Even more significant, the main
map is continued eastward in an inset which shows a number of
cays, including the Cayos Cinco Palos and the Cayos Pichones.
These cays are similar or even smaller than the islets in dispute. Ali
of these cays are situated to the north and west of the line that bas
been advanced by Nicaragua as a maritime boundary. None of the
islets in dispute in the present proceedings is shown in this
continuation of the main map.
6.25 The inset in the 1954 map to which Honduras makes reference is
also inconclusive. The inset only includes the line of words
"Continental Shelf of Honduras". Clearly, a reference to the
287HCM, Vol. 1, para. 3.36.
288
289HCM, Vol. 3 (part 2)1,Plate 23.
290HCM, Vol. 1, para. 3.36.
HCM, Vol. 3 (part 2), Plate 25.
lOI continental shelf does not constitute a claim to insular territory. In
any case the words "Continental Shelf of Honduras" are placed in
the upper right corner of the inset and not in the area in which the
islets in dispute are located. Finally, it can be noted that of these
islets only Cayo Media Luna is included in the inset. The inset also
contains numerous islands and islets to which Honduras has never
made any claim. The inset does not distinguish between these latter
islands and islets and Cayo Media Luna.
6.26 Honduras also makes reference to a Map of Honduras published by
the Pan-American Institute of History and Geography in 1933. 291 As
an Official Map of Honduras of the same year does not provide any
evidence that Honduras considered she had a title to the islets in
dispute in the present proceedings, 292 the evidentiary value of the
Institute's map is in any case dubious. Furthermore, the map of the
Institute also includes islands of Nicaragua to the south of the
parallel of 15° N in the Atlantic Ocean, and in the Gulf of Fonseca
the Farallones of Nicaragua and Meanguera and Meanguerita of El
Salvador. The map does not make any distinction between the islets
in dispute and these other islands and islets. Finally, the Map
contains a statement that it is without prejudice to any questions
relating to the boundaries of Honduras with neighboring States.
6.27 An Official Map of Honduras of 1886 293does include ali the islets in
dispute in the present proceedings. Honduras maintains that this map
294
clearly shows these islets as being part of Honduras. In contrast to
what is maintained by Honduras, this map is not clear in this respect.
The map not only shows these islets, but also numerous cays to the
south of the parallel of 15° Nin the Atlantic Ocean, and in the Gulf
of Fonseca the Farallones of Nicaragua and Meanguera and
Meanguerita of El Salvador. The map does not make any distinction
between the islets in dispute and these other islands and islets. A
further imprecision in this map is that it does not include the Swan
Islands, although these had already been claimed by Honduras in
1867.
6.28 A further example of a map which does not include the islets in
dispute in the present proceedings as territory of Honduras, apart
from the two Official Maps of Honduras of 1933 and 1954 discussed
above, is an 1899 Map of Honduras prepared by Francisco Altschul
for the National Directorate of Honduras. 295Another example in this
-91HCM, Vol. 3 (part 2), Plate 24.
2n See supra para. 6.23.
293HCM, Vol. 3 (part 1), Plate 8.
294
295HCM, Vol. 1,para. 3.58.
NR, Vol. II, Map II.
102 respect is provided by a map prepared by the Mixed Boundary
Commission that was charged with establishing the boundary in the
terms agreed upon in the 1894 Treaty between Nicaragua and
96
Honduras.Z Finally, reference can be made to a school map of the
Republic of Honduras published in 1984? 97 The main map does not
include the area in which the islets in dispute in the present
proceedings are located. Even more significant, the main map is
continued eastward in an inset which shows a number of cays,
including the Cayos Cinco Palos, the Cayos Cocorocuma and the
Cayos Pichones. These cays are similar or even smaller than the
islets in dispute. Allof the cays included in the inset are situated to
the north and west of the line that has been advanced by Nicaragua
as a maritime boundary. None of the islets in dispute in the present
proceedings is shown in this continuation of the main map. This map
also does not show any line along the parallel of 15° N dividing the
maritime areas or insular territories between Nicaragua and
Honduras. On the other hand, the boundary between Nicaragua and
Honduras in the Gulf of Fonseca, established under the 1894 Treaty
between both States is indicated on the map.
6.29 Honduras attaches significance to the fact that Nicaragua did not
protest the Official Map of Honduras of 1933 or the Map published
by the Pan-American Institute of History and Geography in the same
298
year. In the light of fact that the maps produced by Honduras do
not have any evidentiary value, or even point to the absence of a
Honduran claim over the islets in dispute in the present proceedings,
it is obvious that the absence of a protest of Nicaragua is without
relevance for these proceedings. Moreover, at that time Nicaragua
was in possession of the mainland coast weil to the west and north of
the islets in dispute, further obviating the need for a protest.9
6.30 Chapter 6 of the Counter-Memorial gives a detailed account of the
acts of Honduras and activities that supposedly support a Honduran
title to the islets in dispute in the present proceedings. The present
part of the Reply will deal with these arguments in the order in
which they have been presented by Honduras in the Counter
Memorial.
296NR, Vol. II, Map 1.
297
298NR, Vol. II, Map III.
299HCM, Vol. 1,para. 3.36.
See further NM, Chap. III.
103 1. Exercise of Administrative Control over and Application of Honduran
Public and Administrative Legislation and Laws to the Area
6.31 Honduras maintains that the islets in dispute have long been treated
as falling within her territory and being subject to her legislative,
regulatory and other administrative contro1. 300To support this claim,
Honduras makes reference to official maps of Honduras and the fact
that the area concerned falls within the Department of Gracias a
Dios. 301 As was argued above, the cartographie evidence invoked by
Honduras strongly suggests that Honduras did not consider the islets
to be included in her territory before the dispute with Nicaragua over
their maritime boundary surfaced. 302 Legislation of Honduras
defining her political subdivisions indicates that these islets were not
included in the relevant administrative units.303
6.32 Otherwise, 304pter 6 of the Counter-Memorial lists legislation of
Honduras, but does not provide any evidence that this legislation
has been applied to the islets in dispute. The fact that this legislation
applies to the territory of Honduras is obvious, but at the same time
irrelevant for proving the extent of this territory.
6.33 Honduras invokes a number of examples of administrative acts in
respect of the islets in dispute in the present proceedings in the
introductory part of Chapter 6 of the Counter-Memorial. As this
practice is discussed in more detail at a later stage in the Counter
Memorial, a full discussion of these acts is provided below. As will
become apparent, most of the practice invoked by Honduras stems
from the 1990s, more than a decade after the critical date. This
includes practice which is subsequent to the filing of the application
by Nicaragua that instituted the present proceedings in December
1999.305
6.34 The material presented in the introductory part of Chapter 6 of the
Counter-Memorial is symptomatic of the way Honduras tries to built
up a case by suggestively linking events that are unrelated and
omitting certain relevant facts. For instance, paragraph 6.11 of the
Counter-Memorial makes reference to a statement of the current
306
Customs Supervisor of the Department of Gracias a Dios. The
Counter-Memorial refers to the deposition in connection with the
assertion that Honduran customs laws have been applied to the islets
300HCM, Vol. 1,para. 6.9.
301HCM, Vol. 1, para. 6.9.
102See further supra paras. 6.20-6.29.
1()see turther Chap. V and supra paras. 6.17-6.19.
304HCM. Vol. 1, para. 6.10.
305
300See e.g. HCM, Vol. 1, para. 6.15.
HCM, Vol. 1,para. 6.1 1.
104 in dispute since a long time, going as far back as 1940. However, the
deposition only states that the person concerned has issued export
permits to persons carrying out fishing activities close to the Cays
known as South, Bobel and Savanna, without linking these activities
to the islets themselves. 307Moreover, the person concerned can only
have issued such permits in the period after 1990 (the date he took
up his position as customs supervisor in the Department of Gracias a
Dios). The deposition also makes reference to exports since 1940.
However, these exports are neither linked specifically to the cays in
question. Moreover, whilst the Counter-Memorial states that the
person concerned 'confirms' that exports have been taken place
since 1940, the deposition itself is less explicit in this respect, using
the words 'he has heard from other persons'. Honduras has not
produced any further evidence to corroborate this irrelevant hearsay
statement.
2. The Application and Enforcement of Criminal Law and Civil Law
6.35 Honduras deals with the application of her criminal law in two
308
paragraphs of the Counter-Memorial. Ali the examples Honduras
provides in this respect stem from the 1990s, long after the critical
date in the present dispute between Nicaragua and Honduras.
Moreover, the facts of these cases indicate that they may have been
brought in a Honduran court because it concerned Honduran
nationals and not necessarily because the alleged facts took place in
Honduran territory. The examples that Honduras provides of the
application of her civil law not only took place after the critical date,
but are in no way related to the islets in dispute in the present
proceedings. 309
3. Exploration and Exploitation of Oit and Gas in the Area in Dispute
6.36 Honduras maintains that Nicaragua and Honduras have long treated
the parallel of 15° N as the southern and northern boundaries of their
national territory for the purpose of issuing conce310ons for the
exploration and exploitation of oil and gas. This practice is
addressed in detail in Chapter V of the Reply as far as its alleged
relevance for the delimitation of a maritime boundary is concerned.
This practice is also addressed in this chapter on the title to the islets
307HCM, Vol. 2, Annex 69.
308HCM, Vol. 1, paras. 6.20-6.21.
309See HCM, Vol. 1, para. 6.22.
310
HCM, Vol. l, para. 6.24.
105 in dispute as the Counter-Memorial apparently considers that the
concession practice is of relevance for this issue.11
6.37 The conclusions on the concessions that are reached in Chapter V of
the Reply are also relevant for the question of sovereignty over the
islets in dispute. Two conclusions in respect of the concession
practice of Nicaragua are that:
a) this practice did not accept the parallel passing through Cape
Gracias a Dios as a maritime boundary or as any other type of
divisional line; and
b) this practice envisaged that Nicaraguan concession areas could
extend to the north of this line.
6.38 The latter conclusion is particularly relevant for the islets in dispute
between Nicaragua and Honduras. These islets are located just north
of the parallel passing through Cape Gracias a Dios. Even a minimal
extension of one of the Nicaraguan concession areas northward of
this parallel would have placed the islets in dispute inside the
concession area concerned. This indicates that at the time the
concessions were issued, Nicaragua did not consider that the islets
were under the sovereignty of Honduras but under the sovereignty of
Nicaragua. The existence of a Honduran title to the islets would have
prevented the approach Nicaragua actually took in her concession
practice. The practice of Nicaragua and Honduras shows that it is not
consistent as far as the title to the islets is concerned. The Court has
indicated that only in case there would have been such a consistency,
312
such practice might have had relevance in establishing this title.
6.39 An approach similar to that of Nicaragua, involving the creation of
concession areas stopping short of certain islands considered to be
part of the State concerned, was followed by Ethiopia in her
licensing practice in the 1970s. The Tribunal in the Eritrea/Yemen
arbitration observed in respect of this practice:
"Ethiopia in the 1970s entered into a number of
offshore concession agreements, which stop
short of the deep trough that runs through the
middle of the Red Sea. At that time, oil
311The discussion of this practice does not make any express reference to the islets in
dispute (see HCM, Vol. 1, paras. 6.24-6.28), but is included in a section entitled "The
Indicia of Honduran Exercise of Sovereignty", which starts at page 89 of Volume 1of the
31unter-Memorial.
~Case concerning the Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria; Equatorial Guinea intervening), Judgment of 10 October 2002, para.
215; see alsobid. para. 304).
106 technology was unable to support drilling in so
deep a trough. While Yemen maintains that
these agreements-which it rather than Eritrea
introduced in these proceedings-showed a
recognition by Ethiopia and the companies
concerned that Ethiopia was not entitled to
issue concessions embracing the disputed
islands, in the view of the Tribunal these
agreements simply reflect technological and
commercial realities and carry no implication
for the rights of the parties at issue in these
proceedings. It is reinforced in this conclusion
by the fact that Ethiopian concessions typically
contain a formula such as the following (as,
mutatis mutandis, do maps attached to Yerneni
concessions): "The description of the eastern
boundary of the contract area does NOT
necessarily conform to the international
boundaries of Ethiopia and accordingly nothing
said herein above is to be deemed to affect or
prejudice in any way whatsoever the rights of
the Government in respect of its sovereign
rights over any of the islands or the seabed and
subsoil of the submarine area beneath the high
seas contiguous to its territorial waters or areas
313
within its economie zone."
As this quotation shows, the Tribunal considered that the disclaimer
contained in the concessions was not even considered to be a
necessary requirement, but only reinforced the conclusion that the
concessions did not carry any implication for the entitlement to the
islandsin dispute in that case. As is indicated in Chapter V of the
present Reply, concessions issued by Nicaragua also contain a
disclaimer.
6.40 The Honduran licensing practice is also directly relevant to the
question of sovereignty over the islets for another reason. This
practice indicates that Honduras ignored the presence of these islets.
The limits of the concession areas of Honduras do not in any way
indicate that they have been drawn on the basis of the location of the
islets, rocks and reefs in the area concemed. These limits even
indicate that they have been drawn without acknowledge of the
locationof the islets in dispute. Sorne lines indicating the extent of
the Honduran concession areas are drawn across areas that according
313
Eritrea/Yemen (Phase 1)Award, I.L.R. Vol. 114, p. 1 at para. 423.
107 314
to the information provided by Honduras uncover at Iow-tide. On
the other hand, the limits of these concession areas do take into
315
account the configuration of the mainland coast of Honduras.
6.41 The relevance of the findings contained in the previous paragraph is
confirmed by the Eritrea/Yemen arbitration. Eritrea and Yemen had
both licensed activities in the maritime area in which certain islands
in dispute were located. The Tribunal found in respect of one of the
concessions of Yemen that:
"ln view of that statement and the fact that the
concession contract speaks not of an area and
its subsoil and seabed under the sovereignty but
under the jurisdiction of Yemen, the Tribunal
concludes that the 1974 Shell concession was
granted and implemented in exercise not of
Yemen's claims to sovereignty over the islands
and their waters within the contract area but in
exercise of its rights to the continental shelf as
they then were. It further is of the view, in the
light of the foregoing factors, that, since the
contract does not name the Zubayr group and
since Shell conducted no activities on the
islands of the Zubayr group or within their
territorial waters, the 1974 Shell Petroleum
Agreement was entered into without particular
regard to the Zubayr group. Those islands
appear to have been included within the
contract area because the Zubayr group fel/ on
the Yemeni side of the median line, on a
continental shelf over which Yemen could
316
exercise jurisdiction."
31
~As appears from a comparison of Plates 10 and Il contained in HCM, Vol. 1, inserted
315ween respectively the pp. 90 and 91 and p. 98 and Plate 12.
For instance, a Resolution concerning a Permit for Surface Recognition of
Hydrocarbons, Granted to the 'Texaco Caribbean Inc." published in the Oftïcial Gazette of
Honduras N. 23.233 of 17 October 1980 provides:
"Starting from the point (PP), where the parallel 15°00'00" crosses with the
intersection of the Coast, being this point on the border between the
Republicof Honduras and the Republic of Nicaragua.- From this point (PP),
we follow the Coast in a North-west direction, until its intersection with the
meridian 84°00'00"".- (reproduced in HCM, Vol. 2, Annex 114).
316Eritrea/Yemen (PhasI) Award, l.L.R. Vol. 114, p. 1at para. 399 (emphasis added).
108 The Tribunal further found that:
"The Production Sharing Agreement does not
in terms state a daim of sovereignty of Yemen
over the concession area, and, as noted, it takes
no notice of the Islands within it, verbally or in
the annexed map. It could be interpreted as a
concession issued within the area demarcated
by a median line in implementation of Yemen's
rights on its continental shelf, a concession
which includes the Zubayr group but stops just
short of including Jabal al-Tayr. It may be said
that if it was the intention of Yemen in issuing
the concession to assert sovereignty over the
disputed islands, the concession would have
included Jabal al-Tayr. What seems likelier is
that this concession, as others, was issued with
commercial considerations in mind and without
particular regard to the existence of the
Islands."317
These observations show that a striking resemblance exists with the
Honduran concessions to which reference was made in the preceding
paragraph. The Honduran concessions also do not take notice of the
islets included in them in any way.
4. The Regulation of Fishing Activities
6.42 In its discussion of the regulation of fishing activities, 318 the
Counter-Memorial fails to make any clear distinction between
activities that have a relevance for the delimitation of maritime
zones, and activities that purportedly have a relevance for
establishing a title to the islets in dispute in the present proceedings.
The present section will show that the Counter-Memorial does not
present any evidence that the regulation of fishing activities by
Honduras proves a title to the islets in dispute.
6.43 Honduras asserts that she has long regulated fisheries activities in
the area in which the islets in dispute in the present proceedings are
included. 319To support this assertion reference is made to Plate 14
contained in Volume 1 of the Counter-Memorial between pages 104
and 105. No indication whatsoever is given on what information this
map is based or what it actually intends to prove. Apparently, this is
317
318Eritrea/Yemen (Phase 1)Award, I.L.R. Vol. 114, p. 1at para. 412 (emphasis added).
319HCM, Vol. 1, paras. 6.29-6.50.
HCM, Vol. 1, para. 6.30.
109 another attempt to make an impression with visual displays, where
actual proof is lacking. At the same time, Plate 14 is remarkably
imprecise. The area that supposedly includes the islets in dispute is
actually located to the north of these islets.
6.44 Honduras starts her analysis of the regulation of fishing activities
with a reference to the alleged recognition of the Honduran position
on the issues in dispute in the present proceedings by third parties. A
general observation in respect of the material invoked by Honduras
is that this concerns expert opinions, which however do not concern
an expertise in public international law. This limits the significance
of such expert opinion for the issue of sovereignty over territory.
6.45 First of ali, the Counter-Memorial refers to a 1943 report of a United
States agency, the Fish and Wildlife Service of the Department of
the Interior. The part of this report cited in the Counter-Memorial
refers to the presence of many cays, reefs and shoals in the area
offshore from the Honduran mainland coast, without identifying any
320
specifie islands. The Report as reproduced in Annex 162 of
Volume 2 of the Counter-Memorial offers a clarification. The
paragraph preceding the one cited in paragraph 6.32 of the Counter
Memorial provides:
'There are a number of islands and cays lying
off the coast. The most important are the Bay
Islands: Roatan, Bonacca, Utila, and the
Caratasca Cays. The Bay Islands are populated,
and they offer shelter for small boats". 321
The Caratasca Cays, which are situated to the north of Cape Gracias
a Dios are possibly even Jess significant than the islets in dispute in
the present proceedings. As these latter islets are mentioned nowhere
in the Report, the inevitable conclusion is that they were not
considered to be part of the territory of Honduras. The report also
indicates that only the Bay Islands are populated and offer shelter for
small boats. The Caratasca Cays were not inhabited and were not
considered to offer shelter for small boats. This is a further
confirmation that historically the small cays off the mainland coast
of Nicaragua and Honduras were of limited importance.
320
321HCM, Vol. 1, para. 6.32.
The citation is taken from the original document and not from Annex 162, which
contains a numberof typographical errors.
1106.46 A report of the FAO of a project which took place in the late 1960s
and the beginning of the 1970s is not conclusive in respect of the322
issue of sovereignty over the islets, as Honduras submits. The
report shows maps using the parallel of 15° N as a divisional line.
However, a closer examination of the project documents shows that
this fact does not have relevance for the issue of sovereignty over the
islets. First of ali, there is no discussion whatsoever of the islets in
the project documents. Other divisional lines used in the project
documents have no relation to what Honduras considers to be its
maritime boundaries. For instance, the Report indicates that only El
Salvador, Guatemala and Nicaragua have a continental23helf in the
Pacifie Ocean outside the Gulf of Fonseca? The Report also
includes a map that indicates a number of zones in the Caribbean
Sea. Zone 1 is named 'Opposite of Honduras'. Zone 2 is entitled
'Projection of Honduras-Nicaragua'. To the east Zone 2 is bounded
by a meridian to the east of the meridian of 84 o west weil to the
324
north of the area in which the islets in dispute are located.
6.47 The Final Report of the project also contains a statement to the effect
that along the Caribbean coasts of Nicaragua and Honduras the
continental shelf extends for hundreds of kilometers. In this
connection reference is made to a map showing the 100 fathoms
isobath.325 The continental shelf as defined by this isobath extends
for hundreds of kilometers from the coast to the north of the parallel
of 15° N. The report thus indicates that the continental shelf of
Nicaragua is located to the north of this parallel. This implies that
this parallel cannot be a line allocating territory or continental shelf
rights. Finally, the Final Report of the Project indicates that:
"The designation employed and this document
and map and the presentation of material in this
publication do not imply the expression of any
opinion whatsoever on the part of United Nation
or the Food and Agriculture Organization of the
322HCM, Vol. 1, para. 6.32.
323J.S. Cole and R. Wieme, Results of Exploratory Fishing in the Pacifie Ocean Region of
Central America by the RIV Sagitario December 1967 to December /968 (Proyecto
Regional de Desarrollo Pesquero en Centro América,Boletfn Técnico,Vol. Ill, No. 4, San
324vador 1970), p. 9.
M. Giudicelli, Expl'oraciones Pesqueras en el Mar Caribe de Centra América con
énfasisen Aguas Profundas, RIV "Canopus" Abri/ a Octubre 1971 (Proyecto Regional de
Desarrollo Pesquero en Centro América, Boletfn Técnico, Vol. 5, No. 5, San Salvador
1971) p. 56, Figure 6; reproduced in NR, Vol. Il, Annex 26.
325 Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panamâ; Proyecto
Regional de Desarrollo Pesquero en Centroamérica; Informe sobre los Resultados del
Proyecto; Conclusiones y Recomendaciones (FI:DP/RLA/65/030; Informe Terminal;
Roma, septiembre 1972), p. 6; reproduced in NR, Vol. Il, Annex 19.
Ill United Nations concerning the legal or
constitutional status of any country, territory or
maritime area or concerning the delimitation of
its frontiers or boundaries." 326
6.48 A further report of the FAO and other organizations to which
Honduras refers:m was drawn up after the critical date of the present
dispute. This Report was drawn up under a program "Investigation
and Commercial Evaluation of the Main Maritime Fishing
Capacities of Honduras in the Northern Zone" resulting from a
request for financial assistance by the National Investments
Corporation of Honduras (CONADI). The project document which
Honduras reproduces in Annex 162 to the Counter-Memorial and
which includes a reference to Media Luna, was drawn up by the
CONADI and not by the FAO or one of the other organizations
involved. This document thus reflects the position of Honduras
herself and not of the intergovernmental organizations.
6.49 Honduras maintains that she has long granted fisheries licenses to
her nationals and to nationals of third States to fish in the area north
of the paralle1 of 15° N. 328 Honduras has not presented any evidence
that her regulation of fishing activities is relevant to establishing a
title to the islets in dispute. Honduras has not produced any fisheries
legislation or Iicenses making reference to the islets. A notification
concerning a concession of 1962 that has been submitted by
Honduras rather indicates that it applies to an area to the north and
west of the area in which the islets in dispute are located. In relevant
part, the document reads:
"2.- The area destined for fishing will include
the area from the Bay of Puerto Cortés up to the
mouth of the River Wans fsicj Coco or Segovia,
329
in a North hound direction ... "
6.50 The bitacora, 330 a document provided to fishermen by the Honduran
authorities since the tate 1970s, does show the area to the north,
326
Costa Rica. El Salvador, Guatemala, Honduras, Nicaragua, Panama; Proyecto
Regional de Desarrollo Pesquero en Centroamérica; Informe sobre los Resultados del
Proyecto; Conclusiones y Recomendaciones (FI:DP/RLA/65/030; Informe Terminal;
Roma, septiembre 1972), p. iv. See NR Vol. II, Annex 19.
327HCM, Vol. 1, para. 6.32.
32xHCM, Vol. 1,para. 6.30.
329Emphasis provided. An excerpt from the notification is contained in HCM, Vol. 2,
Annex 119.
330
The Counter-Memorial does not provide a translation of the term 'bitâcora', but
observes that this is a document which indicates the areaich fishing is permitted and
112 south and east of Cape Gracias a Dios, but none of the islets in
disgute are included nor a limit of any kind along the parallel of 15°
N. 1 On the other hand, the two bitacoras reproduced by Honduras
include the Bay Islands and two fishing banks and the names of
many geographie features on the mainland coast of Honduras.
6.51 Honduras has submitted a number of depositions of fishermen in
respect of their activities in the Caribbean Sea. Sorne of these
statements make reference to the islets in dispute in the present
proceedings or to islets in general.
6.52 The significance of witness statements conceming fishing activities
to establish a title to islands has been discussedin the Eritrea/Yemen
arbitration. The Tribunal observed that:
"Numerous witness statements were submitted
by both sides as to the longevity and importance
of their respective fishing practices and the
significance of fishing in the lives of their
people. Yet, although substantial evidence of
individual fishing practices in the record may be
taken as a different form of "effectivité" - i.e.,
one expressive of the generally effective attitude
and practice of individual citizens of Eritrea or
of Yemen - it is not indicative as such of state
activity supporting a claim for administration
and control of the Islands. This varied and
interesting evidence, on both sides, speaks
eloquently conceming the apparent long
attachment of the populations of each coast to
the fisheries in and around the Islands, and in
particular that around the Zuqar-Hanish islands.
However it does not constitute evidence of
effectivités for the simple reason that none of
these functions are acts à titre de souverain. For
state activity capable of establishing a claim for
sovereignty, the Tribunal must look to the state
licensing and enforcement activities concerning
fishing described above." 332
which is to be returned to the Honduran authorities with an indication of the quantity and
331eoffish which have been caught as weil as the location (HCM, Vol. 1, para. 6.44).
See HCM, Vol. 3, Plate 31. The bitacoras are also discussed in Chap. V of the Reply in
332ation to the question of maritime delimitation.
Eritrea/Yemen (Phase 1)Award, l.L.R. Vol. 114, p. 1 at para. 315.
1136.53 Apart from this general observation, there are other considerations
which disqualify the depositions presented by Honduras as evidence
of the existence of a title to the islets in dispute. The Counter
Memorial quotes from a number of depositions, in which people
make statements in respect of the islets in dispute in the present
proceedings. This leads to a partial renderingof the contents of these
depositions, which is shown by a systematic analysis of the
depositions contained in Annexes 66 to 96 and 99 of Volume 2 to
the Honduran Counter-Memorial.
6.54 Ali the depositions that address activities in general terms, and are
not related to a specifie actr activity in one or more of the islets in
dispute, contain a statement to the effect that they place on record:
"... several matters related to the exercising of
sovereignty of the Republic of Honduras and, in
particular, the exercising of the jurisdiction of
the Administrative District of Gracias a Dios, in
the Caribbean Sea or in The Antilles, in the
Northeast coast of Honduras and regarding the
islands, islets, cays, Banks and the maritime
zone commencing at the meridian eighty five
(85°) up to the para/le/ of latitude thal passes
through the mouth of the River Segovia or
Coco". 333
6.55 This definition is of critical importance for understanding the
relevance of the depositions for the issue of sovereignty over the
isletsin dispute in the present proceedings. The area between the
meridian of 85° W and the parallel passing through the mouth of the
River Coco not only contains these islets, but also the following
islands and islets: Swan Islands, Cayos Vivorillos, Cayos Cajones,
Cayos Caratasca, Cayos Becerro, Cayos Cocorocuma, Cayos
Pichones, and Cayo Gorda.
6.56 Any of the depositions concerned make only a general reference to
cays or mention specifie activities in respect of one of the islets in
dispute and then continue with a general statement about "cays".
Such general references to 'cays' do not have any relevance for the
issue of sovereignty over the islets in dispute in the present
proceedings as these may as weil refer to the other islands and islets
m This quotation is taken from HCM, Vol. 2, Annex 66 (emphasis added). A similar
statementis contained in 25 of the other 29 depositions analyzed here. These ali make
reference to this same meridian and parallel.
114 listed above.334is concerns statements in more than 10 of the
depositions.
6.57 A second point concerns the islets that are specifically mentioned in
the depositions. At the beginning of the Counter-Memorial,
Honduras identifies "four important islands" lying between the
maritime boundaries claimed by Nicaragua and Honduras:335vanna
Cay, South Cay, Bobel Cay and Port Royal Cay. A number of the
depositions make reference to three of these cays. However, Port
Royal Cay is not mentioned in any of the depositions that have been
presented to the Court by Honduras. This is in conformity with the
silence of the Counter-Memorial on Port Royal Cay in general.
6.58 The depositions in general do not link specifie events to specifie
dates. As most depositions do indicate the period in which persons
were active as fishermen, this might give the impression that any
statement specifically dealing with the islets in dispute also concerns
this whole period. Such a view is of course erroneous. If specifie
events are linked to a specifie date this is generally after the critical
date. A number of depositions give "hearsay" evidence. Sorne of the
persons concerned have never been in the islets at ail or not in the
period of relevance for the present dispute. 336
6.59 Two of the depositions are of a certain interest because they contradict
the Honduran assertion that the islets in dispute have been inhabited
for a long time. 337 Both fishermen were active in the area containing
the islets in dispute in the period up to 1974 or 1975. One of them
states that Media Luna, Savanna, Bobel and South Cays were not
338
occupied by anyone. The other statement indicates that the person
concerned is not aware that Savanna, South and Bobel Cays were
occupied by foreign persons. 339
334
For instance, the deposition in Annex 71 at p. 199 refers to activities that take place "at
the cays"; the deposition in Annex 72 at p. 202 makes reference to a visit to "the Cays"
after 1999; the deposition in Annex 75 at p. 214 refers to fisheries around "cays"; the
deposition in Annex 76 at p. 218 refers to banks close to "the cays"; the deposition in
Annex 77 at p. 223 refers to "the area of the Cays in Honduras"; the deposition in Annex 78
at p. 227 refers to occupants of "the Cays"; the deposition in Annex 79 at p. 231 refers to
Jamaicans that occupy "the Cays"; the deposition in Annex 81 at p. 214 refers to people
working in "the cays"; none the depositions in Annex 89 to 94 specify which islets were
concemed in response to a question which makes also reference to islets that are outside the
area in dispute in the present proceedings.
335HCM, Vol. 1,para. 2.3.
336This concerns e.g. the depositions contained in HCM, Vol. 2, Annexes 70, 78 and 81.
337This concerns the depositions in Annexes 82 and 83 of Vol. 2 of the HCM.
338
339HCM, Vol. 2, Annex 82.
HCM, Vol. 2, Annex 83.
1156.60 The Court has indicated that habitation of an island by a group of
people does not constitute an act à titre de souverain. In the case
concerning Kasikili/Sedudu Island (Botswana/Namibia) the Court
observed that:
"It follows from this examination that even if
links of allegiance may have existed between
the Masubia and the Caprivi authorities, it has
not been established that the members of this
tribe occupied the Island à titre de souverain,
i.e., that they were exercising functions of State
authority there on behalf of those authorities.
lndeed, the evidence shows that the Masubia
used the Island intermittently, according to the
seasons and their needs, for exclusively
agricultural purposes; this use, which began
prior to the establishment of any colonial
administration in the Caprivi Strip, seems to
have subsequently continued without being
linked to territorial claims on the part of the
Authority administering the Caprivi." 340
This observation also applies to the present case. Apart from the fact
that there is very scarce evidence of people staying in the islets,
Honduras has not shawn that she has sought to regulate any activity
341
of such persans in the islets in dispute before 1999.
6.61 In conclusion, the depositions of fishermen do not provide any
support for the Honduran assertion that she has a title to the islets in
dispute in the present proceedings.
5. The Regulation of Immigration
6.62 Honduras maintains that she has long regulated immigration into the
area north of the parai!el of 15° N including the islets in dispute. 342
As is the case for many other matters Honduras allegedly has
regulated for a long time, the Counter-Memorial tries to build up a
case by linking recent Honduran practice to activities not attributable
to Honduras that took place at an earlier date. Honduras only
343
provides evidence of her regulatory activity in 1999 and beyond.
The Counter-Memorial then refers to the presence of persans in the
3 0
3~1.C.J. Reports1999,pp. 1105-1106, para. 98.
342See further ùifra paras. 6.62 and 6.87g).
343HCM, Vol. 1,para. 6.51.
See e.g. the references in HCM, Vol. 1, p. 118,footnote 107 and p. 119, footnotes lil
l 13 and 115-116.
116 cays for a much longer period, without submitting any proof that
such presence has been regulated from the date concemed by
Honduras. 344
1
6.63 Honduras also refers to guano exploitation on Bobel Cay in the 19 h
Century and more recently. The proof that Honduras presents is
either inconclusive or damages her case. A concession granted by
Honduras to aMr. Jacob Baiz does not make any reference to Bobel
Cay, but only to "islands, small islands and keys of the Atlantic
345
belonging to the State". The deposition of Mr. Daniel Bordas
Nixon refers to a visit to Bobel Cay in the 1920s. As is apparent
from his deposition, at that time Mr. Bordas was living in Nicaragua
346
and not in Honduras. This is further proof of the fact that
historically there are links between Nicaragua and the islets in
question. His very broad reference to exports to the United States
does not clarify which country regulated these exports or when they
took place. 347
6. Military and Naval Patrols and Search and Rescue
6.64 Honduras indicates that she has carried out naval patrols in the
disputed area since 1976 to48nforce her fisheries legislation and
maintenance of security ? The relevance of naval patrols and search
and rescue for the issue of maritime delimitation is discussed in
Chapter IX. Such activities are not of direct relevance for the issue
of sovereignty over the islets in dispute as they in general do not
concem acts à titre de souverain in the islands.
6.65 In any case, Honduras has not provided any evidence of such
activities in respect of these islets before the critical date. To the
contrary, a witness statement indicates that Honduras before the
critical date in the present dispute did not carry out any operations
around the parallel of 15° N, but only in the area to the north of a
line running in a northeasterly direction from the mouth of the River
Coco. 349 Another witness statement indicates that Honduran
authorities only have started to pose a problem to Nicaraguan fishing
vessels to the north of the parallel of 15° N in recent years. 350
344
See e.gHCM, Vol. 1, para. 6.53.
345See HCM, Vol. 2, Annex 169.
346HCM, Vol. 2, Annex 70.
347HCM, Vol. 2, Annex 70.
348HCM, Vol. 1 para. 6.60.
349
350NR, Vol. II Annex 23.
NR, Vol. Il, Annex 24 and Annex 27.
1176.66 Search and rescue operations are irrelevant for the establishment of
a title to the islets in dispute.51 In the Eritrea/Yemen arbitration the
Tribunal observed in respect of such an operation that:
"Since there is under the law of the sea a
generalized duty incumbent on any person or
vesse) in a position to render assistance to
vessels in distress, no legal conclusions can be
drawn from these events." 352
7. Public Works and Scientific Surveys
6.67 Honduras maintains that she has carried out public works on the
353
islands, including Bobel, Cay, South Cay and Savanna Cay. As
can be noted this is another case in which Port Royal Cay, one of the
354
four "important islands" identified as such by Honduras, is
m1ssmg. Again, the arguments provided by Honduras are
inconclusive. Activities took place after the critical date, did not take
place in the islets in dispute, or do not support the conclusions that
Honduras draws.
6.68 As was already discussed before, the 1976 Arrangement between
Honduras and the United States to which Honduras refers 355does not
mention the islets. Activities under this arrangement specifically
linked to the islets in dispute only took place after the critical date.
There are a number of arguments that indicate the irrelevance of
these acts for the issue of sovereignty.
6.69 A report on the installation of beacons and buoys of 1980 does not
make any reference to the islets in dispute, but includes reference to
356
other islets. Moreover, the placing of beacons and buoys is not
directly relevant for the establishment of a title to islands. 357
6.70 The irrelevance of the FAO project to which Honduras refers in
paragraph 6.67 of the Counter-Memorial for the issue of sovereignty
over the disputed islets has already been discussed extensively at
paragraph 6.48 of this chapter.
351Reference to such operations is made in HCM, para. 6.62.
352Eritrea!Yemen Award (Phase 1),l.L.R. Vol. 114, p. 1at para. 286.
353
354HCM, Vol. 1,para. 6.64.
HCM, Vol. 1, para. 2.3.
355HCM, Vol. 1,para. 6.65.
156This Report is reproduced in HCM, Vol. 2, Annex 145.
m See e.g. I.C.J. Reports 1953, p. 71; Eritrea!Yemen Award (Phl),I.L.R. Vol. 114, p. 1
at para. 283.
118 8. The Recognition of Honduran Sovereignty by Third States
6.71 Honduras mainly refers to two States that supposedly have
recognized Honduran sovereignty over the islets in dispute in the
present proceedings, Jamaica and the United States. Honduras
submits that the recognition of Jamaica is reflected in the activities
of Jamaican nationals in the waters north of 15° N and by the export
of fish caught in those waters. Honduras also makes reference to a
request by Jamaica to have access to Honduran waters in 1977. 358
6.72 As can be established, Honduras only refers to activities in the
waters concerned and to the export of fish to Jamaica, implying a
tacit recognition of the fact that these activities are not relevant to
establish a t:itle to the islets in dispute. Otherwise, there is one
isolated fact possibly related to one of the islets in dispute. In this
case, it is not clear whether the Jamaican request is actually
concerned with one of the islets in dispute in the present
proceedings. The request shows uncertainty over the name of the
islet co359rned and does not indicate the coordinates at which it is
located. The Honduran view that these acts form a recognition of
her position by Jamaica is contradicted by negotiations on maritime
delimitation that took place between Nicaragua and Jamaica in 1996
and 1997. 360
6.73 Honduras asserts that the recogmtwn by the United States is
reflected in numerous activities carried out by the United States in
and around the islets in dispute. 361Honduras again refers to a 1976
Arrangement between the United States and Honduras, failing to
mention that this arrangement has no relevance for the issue of
sovereignty over the islets, as it includes no reference to any of
them. Only in 1981, at which time Nicaragua was involved in an
armed conflict with inter alia Honduras and the United States, were
markers placed on three of the islets in dispute in the present
362
proceedings. Furthermore, as can be appreciated from Plates 16 to
18 included between pages 126 and 127 of Volume 1 of the Counter
Memorial, the markers concerned are just a metal dise in a concrete
base, making them only detectable at a close distance.
358HCM, Vol. 1,para. 6.68.
359The Jamaican note is reproduced in HCM, Vol. 2, Annex 19.
360See further infra paras. 6.115-6.116.
361HCM, Vol. 1,para. 6.70.
362
The photo of a marker reproduced at Plate 16 after p. 126 of the Counter-Memorial,
which allegedly is located atanna Cay, does not show any information on its location.
1196.74 The drug enforcement operations carried out by Honduras and the
United States only took place in 1993 and no evidence is offered of
acts in the islets in dispute.
6.75 Honduras also refers to a number of documents that can be
considered to provide expert opinion. A general observation in
respect of these materials invoked by Honduras is that, although they
concern expert opinions, they do not concern an expertise in public
international law. This limits the significance of such expert opinion
for the issueof sovereignty over territory.
6.76 For instance, Honduras again refers to a 1943 Report of the Fish and
Wildlife Service of the United States Department of the Interior and
the Office of the Coordinator of Inter-American Affairs. This is the
only instance of Unite States "recognition" mentioned by Honduras
that predates the critical date. As was already noted before, this
report only refers to cays to the north of the area in dispute in the
present proceedings (Caratasca Cays). The language employed
strongly suggests that the cays in dispute in the present proceedings
363
were not considered to be included in the territory of Honduras.
6.77 Honduras also refers to a number of United States Reports
identifying specifie cays as being either in Nicaragua or
364
Honduras. Again, this concerns materials subsequent to the
critical date in the present dispute. Moreover, the suggestion made
by Honduras that the reports "are partially based on Honduran and
Nicaraguan official information" is misleading. As footnote 152 at
page 128 of Volume 1of the Counter-Memorial indicates the reports
reproduced in two of the Annexes to the Counter-Memorial provide
"Wherever possible, gazeteer production is carried out with the
cooperation of the country concerned". 365 Honduras provides no
evidence that this was the case for Nicaragua in 1985, a time when
she was involved in an armed conflict with inter alia Honduras and
the United States. The excerpts from the Gazetteers reproduced in
the Annexes in the Counter-Memorial also omit the following
passage,"Geographic names or their spellings do not necessarily
reflect recognition of the political status of an area by the United
States Government."
In the light of this disclaimer, it is curious that Honduras considers
that the Gazetteers provide positive proof of recognition of a
Honduran title to the islets in dispute. Honduras also refers to a2000
Gazetteer of a United States Agency. This document could not be
363See further supra para. 6.45.
364HCM, Vol. 1,para. 6.70.
365HCM, Vol. 2, Annexes 167 and 168.
120 checked as the internet site on which it should be located was not
366
available.
6.78 Honduras further submits that the 1995 "Sailing Directions" for the
Caribbean Sea issued by the US Defense Mapping Agency
contribute to establish a Honduran title to the isletsin dispute.367 In
this connection, Honduras refers to the fact that two sectors
described in this publication are divided by a line that in part is
roughlls equivalent with the parallel passing through Cape Gracias a
3 8
Dios. Honduras fails to indicate that the Preface to the Sailing
Directions provides that "This publication is divided in geographie
areas called "Sectors"."369Furthermore, the limit between the sectors
including the Nicaraguan mainland coast (sector 5) and the
Honduran mainland coast (sector 6) in large part is situated to the
north of the parallel that Honduras considers to be her maritime
boundary with Nicaragua. In addition, the sector off the Nicaraguan
mainland extends well beyond the parallel of 82° W, which
according to Honduras limits the maritime areas of Nicaragua with
Colombia. Finally, the description of the maritime area off the
mainland coast of Central America confirms that the division in
sectors in no way concerns recognition of the Honduran position in
respect of the islets in dispute. For instance, it is noted that:
"The W Caribbean, outside the 200m curve off
Nicaragua and Honduras, is fouled and marked
by scattered banks, cays, and islands. Cayos de
Albuquerque, located about 107 miles E of
Bluefïelds, and Serranilla Bank, located about
187 miles ENE of Cabo Gracias a Dios, are the
S and E dangers of those described in this
sector. Rosalind Bank and the dan~e rs and
70
NW of it are described in Sector 6."
366
The address of the site is given in HCM, Vol. 1, p. 128, footnote 153. Access was sought
on 26 June 2002 and 8 July 2002.
367HCM, Vol. 1,para. 6.71.
368It should be noted that this is a very thick line, covering an area which on the Earth's
surface would at least measure some 10 kilometers in width. Some of the islets in dispute
(which are not included in the map) are not to the north of this line, but the line over1aps
369h them.
Sailing Directions (Enroute); Caribbean Sea; Vol. 2, Fifth Edition (Defense Mapping
Agency, 1995), p. iii (emphasis added). The document referred to in this and the following
footnote were included in the materials deposited with the Registry by Honduras, but are
not included in the additiona1 Annexes of the HCM. The relevant part of the document is
reproduced in NR, Vol. Il, Annex 2.
370Sailing Directions (Enroute); Caribbean Sea; Vol. 2. Fifth Edition (Defense Mapping
Agency, 1995), p. 93 (emphasis added). The relevant part of the document is reproduced in
NR, Vol. Il, Annex 2.
121 As this quotation indicates, it is considered that ali of the area
described lies off the coasts of both Nicaragua and Honduras. There
is no indication in the "Sailing Directions" that any of these features
are considered to fall under the sovereignty of either of the two
States.
6.79 Honduras also refers to the fact that a Pilot published by the
Hydrographer of the Navy of the United Kingdom includes the islets
in dispute in a subsection entitled "Cabo Gracias a Dios to Cabo
371
Falso". The Pilot to which Honduras refers contains a number of
indications that it does not provide recognition of the fact that the
islets in dispute are Honduran. First of ali, it is noted that the section
concerned:
"... covers the whole of the E coasts of Costa
Rica and Nicaragua and the NE coast of
Honduras, from Punta Tirbi (9° 26' N, 82° 21'
W) (3.18) to Cabo Camar6n (16° 00' N, 85° 02'
W) (3.193) 422 miles NNW, including the reef
areas on Miskito (Mosquito) Bank, off the E
372
coast of Nicaragua. "
Subsequently, the Pilot indicates that the Miskito bank includes
the Arrecife Alargado and the Arrecifes de la Media Luna, both of
which are to the north of the parallel passing through Cape Gracias
a Dios. 373 If it were to be accepted that the geographical
descriptions contained in the Pilot contribute to establishing a title
to the disputed islets, they would form part of Nicaragua, as they
are located in the Miskito Bank off the east coast of Nicaragua.
6.80 Other forms of alleged recognition mentioned by Honduras are not
related to the islets in dispute. 374 One incident referred to took place
at the point 15° 10' N and 83° 10' W, that is to the north of the line
which has been presented by Nicaragua as a maritime boundary in
375
her Memorial.
371HCM, Vol. 1,para. 6.71.
372
East Coasts of Central America and Gulf of Mexico Pilot; Western Caribbean Sea and
the Gulf of Mexico from Punta Tirbi to Cape Sable including Yucatan Channel; second
edition (Hydrographer of the Navy, 1993), p. 61.
373East Coasts of Central America and Gulf of Mexico Pilot; Western Caribbean Sea and
the Gulf of Mexico from Punta Tirbi to Cape Sable including Yucatan Channel; second
edition (Hydrographer of the Navy, 1993), p. 74.
374HCM, Vol. 1, para. 6.72.
375
This concerns the incident to which reference is made Note N. 106 dated 27 June 1978
reproduced in HCM, Vol. 2, Annex 144.
122 9. The "Recognition" of Sovereignty by Other Entities
6.81 Honduras also points to recognition of the parallel of 15° N as a
manttme bou376ry by the FAO a77 other international
organizations. As was already argued/ the FAO project that
took place in the late 1960s and early 1970s does not provide any
evidence of a recognition of this fact or that the islets in dispute were
recognized as Honduran. The other project to which reference is
made in this context took place after the critical date in the present
dispute. The project document which Honduras reproduces in Annex
162 to the Counter-Memorial and which includes a reference to
Media Luna, was drawn up by the Honduran Corporation, CONADI,
and not by the FAO or one of the other organizations involved. This
document thus reflects the position of Honduras herself and not of
the intergovernmental organizations.
6.82 Honduras states that private companies have also rec37nized
Honduran sovereignty to the north of the parallel of 15° N. As a
general rule, such "recognition" has to be rejected as irrelevant and
unreliable. Moreover, although Honduras refers to the recognition of
sovereignty, the incident to which she refers in this context is in no
way linked to any of the islets in dispute in the present proceedings.
The example Honduras provides is from 1994, again weil after the
critical date in the present dispute.
JO.A Basis for the Title to the Islets Implicitly Relied upon by Honduras
6.83 Honduras fails to address one basis for the title to the islets in
dispute she has employed in support of this claim. This concerns the
argument that the islets are located in the maritime zones of
Honduras and because of this location fall under her sovereignty.
Although never explicitly mentioned in the Counter-Memorial, this
argument is implicitly made when it is submitted that:
"Honduras does not use these islands as
basepoints, and daims neither shelf nor
economie zone for the islands as such. Its claim
is based on its mainland and the lon 79~istory of
an established, accepted boundary. "
This statement indicates that the islets are included in the seaward
projection of the Honduran mainland coast. This same idea is
contained in a diplomatie note of Honduras in respect of other cays
376
377HCM, Vol. 1, para. 6.73.
378See supra paras. 6.46-6.48.
379HCM, Vol. l, para. 6.74.
HCM, Vol. 1,para. 7.28.
123 in the Caribbean Sea. This diplomatie note of 27 June 1984 states in
respect of an Official Map of Nicaragua:
"There are included in a inset, without any
clarification, the banks and cays of Rosalinda
an Seranilla, located on the Honduran
continental shelf and belonging to our
country".380
6.84 Finally, this idea is presented when Honduras discusses her national
legislation. The Counter-Memorial states:
"the legislation of the Republic of Honduras
expressly identifies the islands, cays, ba381 and
reefs located within her maritime areas".
6.85 The reason why Honduras was discouraged from openly including
this basis of title in the Counter-Memorial can be easily explained.
As Honduras has not presented any conclusive evidence of another
basis of entitlement to the islets, the Court would have been
explicitly invited to base its decision in favor of Honduras on this
criterion. As has been extensively argued by Nicaragua, a division of
the overlapping maritime projections of the mainland coasts of
Nicaragua and Honduras does not lead to a maritime boundary along
the parallelof 15° N as this is a patently inequitable outcome. Such a
division has to lead to the adoption of a tine to the north of the islets
in dispute.
F.CONCLUSIONO SNTHEHONDURAN ARGUMENTC SONCERNINT GITLETOTHEISLETSIN
DISPUTE
6.86 Honduras has provided no evidence that establishes the existence of
a title to the islets in dispute in the present proceedings. Honduras
has not presented any evidence of acts she has carried out à titre de
souverain on the islands before the critical date. This is ali the more
remarkable because Honduras maintains that there are four
"important islands" located in the area between the maritime
boundaries advanced by Nicaragua and Honduras. If these islands
have the importance Honduras asserts they have, she should not have
had any problem in finding abundant materials evidencing her title
to them.
30
~Note N. 408-DA of27 June 1984; reproduced in HCM, Vol. 2, Annex 37.
JXtHCM, Vol. 1, para. 3.29 (footnote omitted; emphasis added).
1246.87 The following points can be specifically noted in respect of the
arguments Honduras has made to support her title to the islets in
dispute:
a) The uti possidetis iuris of 1821 does not provide a basis for the
existence of a Honduran title to the islands.
b) The Award of the King of Spain of 1906 did not address the issue
of sovereignty over islets and rejected the use of parallels and
meridians as a land boundary.
c) The Award of the King of Spain of 1906 excludes the possibility
that the parallel of 15° N was implicitly adopted by the
Arbitrator to establish sovereignty over the islets off the mouth
of the River Coco.
d) The land boundary Honduras submitted in her pleadings in this
arbitration was proposed without taking into account the islets
off the Central American mainland coast.
e) Cartographie evidence presented by Honduras is either
inconclusive or points to the fact that Honduras considered that
the islets in dispute did not form partof her territory.
f) Honduras has not presented any evidence that she considered the
parallel of 15° N to be a line allocating the sovereignty to islets
to the north of it to Honduras and to the south of it to Nicaragua
at any time before the critical date in the present dispute. To the
contrary, Honduras has provided evidence and arguments that
indicate that she considered that no such line existed.
g) Honduras has not presented any evidence that she sought to
regulate activities in the islets before the critical date. Honduras
only actively started to assert a claim over the area north of the
parallelof 15° N in the 1980s. Even for this period Honduras
provides hardly any concrete evidence in respect of the islets.
Most evidence of such regulation stems from the second half of
the 1990s and beyond. Once the Honduran claim to the islets
became apparent in the 1980s Nicaragua immediately reacted by
rejecting this claim.
h) Honduras has not provided any evidence of recognition of her
claims to the islets in dispute by third States or international
organizations. A United States report from 1943 invoked by
Honduras rather proves that the islets did not form part of the
territoryof Honduras.
125 i) Honduras does not provide any evidence in respect of Honduran
acts, even after the critical date, in respect of Port Royal Cay,
one of the four islets described by Honduras as "important
islands".
j) Honduras has not shown the existence of her historical,
uninterrupted and unchallenged exercise of sovereignty over the
islets in dispute. Ali the so-called evidence presented by
Honduras to substantiate her claim stems from the period after
the critical date. Such self serving evidence in any case does not
contribute to establishing a title to the islets in dispute.
II. The bases of the Nicaraguan daim (including effectivités)
6.88 The analysis of the bases of the Nicaraguan claim will mainly
address two issues. The Counter-Memorial seeks to give specifie
meaning to acts and omissions of Nicaragua. It has to be established
to what extent the Counter-Memorial gives a correct interpretation of
the practice of Nicaragua. A second issue that is addressed is the
evidence that substantiates the title of Nicaragua over the islets in
dispute.
6.89 The islets in dispute are located in a region that until recently has
attracted relatively little attention. Moreover, the islets in dispute are
very small and have mainly been used as a resting place by
fishermen in the fishing season. In this connection, it is appropriate
to draw an analogy with the Eritrea/Yemen arbitration, which was
concerned with the title to a number of islands. In analyzing the
evidence before it, the Tribunal observed that:
"The factual evidence of "effectivités" presented
to the Tribunal by both parties is voluminous in
quantity but is sparse in useful content. This is
doubtless owing to the inhospitability of the
Islands themselves and the relative meagreness
of their human history. The modern
international law of the acqu1s1t1on (or
attribution) of territory generally requires that
there be: an intentional display of power and
authority over the territory, by the exercise of
jurisdiction and state functions, on a continuous
and peaceful basis. The latter two criteria are
126 tempered to suit the nature of the territory and
382
the size of its population, if any."
These conclusions will have to be taken into consideration by the
Court in evaluating the evidence before it in the present proceedings.
A. THE UT/POSSIDETIS IURJOF 1821
6.90 There is no documentary evidence that there exists a title to the
disputed islets on the basis of the uti possidetis iuris of 1821 of
either Nicaragua or Honduras. This is not surprising as the territory
in dispute concerns a number of small islets located in an area that in
1821 had hardly any economie or strategie significance. In the
absence of any documentary evidence on the uti possidetis of 1821
there is one other consideration that is relevant to establish the
situation in 1821. This is the location of the islets in dispute in
relation to other territories of the states concerned. The islets in
dispute form part of a chain of islands and islets that extend from the
Nicaraguan mainland coast to the Main Cape Channel off the mouth
of the River Coco. If a 6 nautical mile maritime belt (the breadth
applied in Central America in 1821) were to be drawn around ali
features that qualify as a baseline under international law, there
would be an almost uninterrupted maritime area extending from the
Nicaraguan mainland and Miskito Ca~ to the Main Cape Channel,
3 3
including ali the islets in dispute. The Main Cape Channel
separates the islets and reefs located to either side of it and forms an
384
important navigational channel.
6.91 This argument of adjacency is not unfamiliar to the States in the
region. 1t was employed in the turtle fishing dispute between
Nicaragua and the United Kingdom at the turn of the 19thcentury to
determine the title to small islets off the mainland coast of
382(Eritrea/Yemen Award (Phase 1),l.L.R. Vol. 114, p. 1 at para. 239).
383See NR, Vol. Il, Figure VIII.
384
For instance, a Pilot prepared by the Hydrographer of the United Kingdom Navy
indicates that:
"Main Cape Channel (15° ION[sic], 82° 55' W) is one of the main channels
crossing the Miskito Bank, leading from the vicinity of Cabo GaDioss
(15° OO'N,83° 09' W) to deep water NNE. General depths in the fairway,
which is at least 5 miles wide, are 18 to over 30m (East Coasts of Central
America and Gulf of Mexico Pilot; Western Caribbean Sea and the Gulf of
Mexico from Punta Tirbi to Cape Sable including Yucatan Channel; second
edition" (Hydrographer of the Navy, 1993), p. 74).
127 385
Nicaragua. This dispute is discussed in detail in Chapter IV of the
Reply.
6.92 The relevance of adjacency to establish title to small islets was
recognized in the Eritrea/Yemen arbitration. The Tribunal noted that
the activities relied upon by the parties, though many, sometimes
spoke with an uncertain voice. In such circumstances, the Tribunal
considered it could look at other possible factors that might
386
strengthen the basis of decision. The Tribunal noted that an
obvious such factor was:
"... the geographical situation that the majority
of the islands and islets and rocks in issue form
an archipelago extending across a relatively
narrow sea between the two opposite coasts of
the sea. So there is sorne presomption that any
islands off one of the coasts may be thought to
belong by appurtenance to that coast unless the
State on the opposite coast has been able to
387
demonstrate a clearly better title."
B.THE TURTLE FI SI-liNG DISPUTE
6.93 The turtle fishing dispute between Nicaragua and the United
Kingdom at the turn of the 19 century concerned a fishery in the
islets and banks off the mainland coast of Nicaragua to the south and
the north of the parallel of 15° N. Honduras did not intervene in this
dispute at any moment, which indicates that she did not consider that
these islets formed part of her territory. The claim to regulate the
fishery by Nicaragua in this dispute was based on her sovereignty
over t388islands and islets around which the turtle fishery took
place.
3x5See NR, Vol. II, Annex 28. See also Document 3-02 deposited with the Registry by
Honduras, p. 269.
3 6
3 7Eritrea/Yemen Award (Phase 1),I.L.R. Vol. 114, p. 1 at para. 457.
x Eritrea/Yemen Award (Phase 1),I.L.R. Vol. 114, p. 1 at para. 458 (emphasis added). The
Tribunal expressed some doubt as to the applicability of this factor in case there is a chain
of islands extending beyond the territorial sea of the mainland coast. However, the
reasoning of the Tribunal admits the application of this theory also in this case, although it
is capable of being rebutted by evidence of a superior title (ibid, para. 474). This indicates
that this factor can be taken into account in the absence of a superior title.
3
xxFor a detailed analysis of the dispute see NR, Chap. IV.
128 C. THEARBITRALAWARD OF THE KING OF SPAIN OF1906
6.94 As was argued above, the Arbitral Award of the King of Spain was
only concerned with the land boundary between Nicaragua and
Honduras. Only Nicaragua made a reference to islands (the Swan
Islands) in her pleadings in this arbitration. Honduras holds that it is
obvious that this claim of Nicaragua before the King of Spain
implied a claim to the islets that are now in dispute between
389
Nicaragua and Honduras. If the Honduran assertion of an implied
claim to the islets that are now in dispute is accepted, the only
conclusion that logically follows is that Honduras through her
silence on this point accepted that these islets formed part of the
territory of Nicaragua. 390
D. THE LEGISLATlON OF NICARAGUA
6.95 Honduras considers there is a "pattern of imprecision and Jack of
identification of the islands, cays, banks and reefs" included in the
territory of Nicaragua that is characteristic of the entire Nicaraguan
legislation.391Honduras further submits that the relevant provisions
do not provide any evidence that the insular features to which
Nicaraguan legislation refers were located north of the parallel of
15oN.r92
6.96 This argument of Honduras is wholly without merit. The legislation
of most States does not make specifie reference to ali the mainland
and island territories to which it applies. The most recent example in
this respect for Nicaragua is given by the Law on Maritime Areas of
393
5 March 2002. The Law, which establishes a 12 nautical mile
territorial sea, 24 nautical mile contiguous zone, exclusive economie
zone and continental shelf, makes reference to the "coasts" and
"baselines". If legislation is stated to apply to islands in general, it
has to be assumed to be applicable to ali the islands that a State
considers to be included in her territory. Even if no reference is
made to islands at ali, legislation will in general be applicable to ali
of the territory of a State unless there are specifie provisions which
provide otherwise.
3 9
~ HCM, Vol. 1,para. 5.11.
390See further supra para. 6.15.
391HCM, Vol. 1, para. 3.28.
392HCM, Vol. 1, para. 3.28.
393See NR Vol. II, Annex 29.
1296.97 The cnticism of Honduras becomes even more incomprehensible
once it is realized that only in 1982, after the critical date, the
Honduran Constitution included a reference to one of the islets in
dispute in the present proceedings. Before that time, the Honduran
Constitution and other legislation did not contain any reference to
these islets.
6.98 Honduras refers to a Decree of Nicaragua (Decree No. 43-91 of 31
October 1991) and a Report on the Situation in the Caribbean Coast
of Nicaragua, both define a specifie area, which does not include the
islets in dispute.94 The Decree to which reference is made contains a
395
Declaration establishing a Marine Biological Reserve. This
Declaration defines an area with a radius of forty kilometers centered
on Miskito Cay. This area does not extend to the parallel of 15° N
and also excludes islets and rocks to the south of the islets in dispute.
Clearly, this definition is intended to indicate the extent of a natural
reserve and not the extent of the territory of Nicaragua.
6.99 The other document concerned is a report in connection with a
project for improving the capacity to organize natural resources of
the Caribbean coast, issued in 1999. 396 The fact that the islets in
dispute are not included in this document does not entai! a
recognition by Nicaragua that she considers that the islets in dispute
are not included in her territory. This claim at that time was widely
known and advanced by Nicaragua. Exclusion of the disputed islets
from the project document is easily explained by its nature. This
document seeks to establish a policy and management framework. It
would be of little use to include disputed areas in such a framework
as it would not be possible to execute it in such an area.
E. CARTOGRAPHiE eVIDENCE
6.100 Honduras accuses Nicaragua of relying on cartographical evidence
that is recent and self-serving and has been prepared by Nicaragua
"for the purpose of these proceedings, and much of it post-dates the
filing of Nicaragua's Application". 397 This assertion is patently
untrue, as Nicaragua has presented no cartographie evidence post
dating the filing of her Application. As a matter of fact, Honduras
fails to make any reference to material presented by Nicaragua in
support of this assertion. The Honduran accusation becomes even
more astonishing when it is realized that it is Honduras which has
Wl HCM, Vol. 1, para. 6.17.
395
396Reproduced inHCM, Vol. 2, Annex 164.
397Reproduced inHCM, Vol. 2, Annex 165.
HCM, Vol. 1,para. 3.59.
130 relied on recent and self-serving evidence that in a number of cases
398
post-dates the filingof Nicaragua's Application.
6.101 Honduras has reproduced a number of maps that have been
399
published in Nicaragua. The Counter-Memorial fails to mention
one aspect of these maps, which, in the light of the arguments of
Honduras, is of fundamental importance. None of the maps includes
a maritime boundary running along the parallel of 15° N or a line
running along this parallel to indicate the extent of the insular
territoryof Nicaragua in the Caribbean Sea. This omission becomes
even more significant once it is realized that the maps concerned do
show a boundary between Nicaragua and Honduras in the Gulf of
Fonseca. 400 Depiction of the latter boundary leads to the conclusion
that the maps not only intend to show the terrestrial boundaries of
Nicaragua, but also its offshore boundaries. The maps indicate that
Nicaraguan sources considered that no boundary between Nicaragua
and Honduras existed in the Caribbean Sea.
6.102 Honduras fmther argues that maps published in Nicaragua:
"... do not include any of the islands and cays
which Nicaragua now daims as being located
within Nicaraguan territory. The daim set forth
in Nicaragua's Memorial ignores its own
cartography, both historical and present day.
The omissions become even clearer when it is
noted that ali of these maps do include the
islands and cays which lie south of the 15 h
parallel over which Nicaraguan sovereignty is
claimed and recognized." 401
A review of the maps published in Nicaragua that have been
presented by Honduras reveals that the above statement does not
accurately reflect the information which is included in the maps.
First of ali, Honduras suggests that ali islands and cays which lie
south of the parallel of 15° N are included in these maps. However,
398For instance, Honduras relies on a Treaty of 4 December 2001 she concluded with the
United Kingdom (HCM,.Vol. 1, para. 8.JO)and temporary work permits issued on 6 and 10
January 2000 (HCM, Vol. 1, para. 6.53). As is noted in Chap. III, para. 3.37 of the present
Reply, the Treaty between Honduras and the United Kingdom is not relevant for the present
~roceedings.
99See HCM, Vol. 3 (Part 2), Plates 28 and 29; and HCM, Additiona1 Annexes to Volume
2, Annex 177 to 179.
400This concerns ail of the maps, except the map contained in HCM, Additional Annexes to
Volume 2, Annex 177, which does not cover the Gulf of Fonseca and was drawn up at a
401e the boundary in the Gulf had not yet been established.
HCM, Vol. 1, para. 3.59 (emphasis in the original).
131 ali these maps only give an approximate idea of the extent of the
insular territoryof Nicaragua in the Caribbean Sea. For instance, the
map reproduced as Annex 178 to the Counter-Memorial only shows
Miskito Cay and one other islet to the north of it. In reality there are
numerous islets around Miskito Cay. Secondly, Honduras fails to
indicate that two of the maps concerned indicate that the insular
domain of Nicaragua includes the islets in dispute in the present
proceedings. The Official Map, dated 1898, includes islets to the
north and the south of the islets in dispute in the present
402
proceedings. This leaves little doubt that these latter islets were
also considered to be Nicaraguan. An inset in a map of 1993 shows
the contours of a number of reef areas, one of which extends to the
north of the parallel of 15° N. This area includes the islets in dispute
m t e present procee mgs. - 403
6.103 The official map of Nicaragua prepared in 1982 also contradicts the
Honduran assertions in respect of cartographie evidence originating
from Nicaragua. 404As is the case for other such maps, this map does
show a boundary between Nicaragua and Honduras in the Gulf of
Fonseca, but not in the Caribbean Sea. The map also includes the
"Reefs of Media Luna" and the "Reefs of Alargado", which areas
contain the islets in dispute in the present proceedings.
6.104 The 1998 edition of the Official Map of Nicaragua was annexed to
the Memorial as Figure B, Volume III. The Nicaraguan Memorial
mistakenly indicated that this map contained the following
inscription: "The maritime frontiers in the Pacifie Ocean and the
Caribbean Sea have not been juridically delimited." (See Chapter II,
paragraph 47 of the Nicaraguan Memorial) In fact, this inscription is
written in earlier editions. Honduras points to this error in paragraph
3.34 of her Counter Memorial. For this reason, the 1997 edition of
the Official Map, which has the inscription, is reproduced in Volume
II of this Reply as Map V.
6.105 Honduras asserts that Nicaraguan geographers have recognized that
the islets in dispute are not partof Nicaragua. 405To provide evidence
of this affirmation Honduras refers to the publication Geograffa de
406
Nicaragua of 1964. However, even in the incomplete and selective
translation of the text provided by Honduras, it is clear that this
publication contains a non-limitative enumeration, as the islets to
which specifie reference is made are preceded by the words 'such
402
403HCM, Additional Annexes to Volume 2, Annex 177.
404HCM, Additional Annexes to Volume 2, Annex 179, Map 179 A.
Reproduced in NR, Vol. II, Map IV.
406HCM, Vol. 1, para. 3.28.
HCM, Vol. 1, p. 42, footnote 45.
132 407
as'. There is nothing in the text to suggest that the islets in dispute
were excluded from this enumeration.
6.106 There is another publication prepared by Dr. Jaime Incer, one of the
authors of the publication Geografia de Nicaragua of 1964, which is
relevant in the present context. This publication, an Indice
Geogrâfico de Nicaragua of 1971, which constitutes expert evidence,
includes a reference to Media Luna, which is described as:
"Group of cays and reefs localted
approximately 70 km east of Cape Gracias a
Dios, on the submarine shelf. It includes the
following islets: Logwood, Bobel, Savanna,
South, Half Rock, Alargado Reef and Cock
Rock. It is located at latitude 15° 10' North and
408
Longitude 82° 35'."
This is one of the very limited instances in which materials
preceding the critical date in the present dispute explicitly and
unequivocally refer to the islets in dispute as forming part of the
territory of one of the parties to the present proceedings. As such, it
is of particular significance for the issue of the sovereignty over the
islets in dispute.
F. EFFECTIVITÉS AND THE EXERCISE OF NICARAGUAN SOVEREIGNTY AND JURISDICTION
OVER THE ISLETS IN DISPUTE
1. Fisheries Legislation, Activities and Enforcement
6.107 Honduras asserts that:
"Nicaragua has provided no evidence to the
Court to show that it has ever applied or
enforced - or even sought to apply and enforce
- its fisheries laws north of the 151hparallel."409
As was already pointed out above in evaluating the Honduran
arguments in relation to the regulation of fisheries activities, the
issuing of fishing licenses or adoption of fisheries legislation is not
directly relevant for the issue of title to territory.As a consequence,
407NR, Vol. Il, Annex 30. See also HCM Vol. 2 Annex 166.
408 Indice Geognifico de Nicaragua; Volumen I (Rfos, Lagos y Litorales) (lnstituto
Geogrâfico Nacional, Managua, septiember 1971),. 124; NR, Vol. Il, Annex 31.
409
HCM, Vol. 1, para. 6.47.
133 it suffices to note in this Chapter that Nicaragua has regulated
fisheries in the Caribbean Sea for a long time. Nicaraguan legislation
in no way indicates that such regulation was limited only to areas
south of the parallel of 15° N. For instance, Decree No. 11 of 5 April
1965 establishes a 200 nautical mile national fishing zone "in the
410
Atlantic and Pacifie Oceans".
6.108 As far as the control and enforcement of fishing activities in the area
in which the disputed islets are located is concerned, Nicaragua can
point to a much longer presence than Honduras. The turtle fishing
dispute between Nicaragua and the United Kingdom at the turn of
1
the 19 h century concerned a fishery in the islets and banks off the
mainland coast of Nicaragua to the south and the north of the
parai!el of !5o N. Honduras did not intervene in this dispute at any
time, which indicates that she did not consider that these islets
formed part of her territory. The claim to regulate the fishery by
Nicaragua in this dispute was based on her sovereignty over the
islands and islets around which the turtle fishery took place. 411
6.109 Nicaraguan and foreign fishing vessels licensed by Nicaragua have
been fishing in the area to the north of the parallel of !5° N since a
long time. For instance, Mr. Jorge Morgan Britton states that:
"... during fourteen (14) years from nineteen
sixty (1960) to nineteen seventy-four (1974)
during which he worked as a crew member and
captain of fishing boats, it was usual for said
boats, which operated with Nicaraguan fishing
licenses, to carry out their work in the north up
to the parallel seventeen (17), in the areas near
Rosalinda Bank, and that the product of the
fishing activities were unloaded at the
processing plants that were then located in the
area of Bluefields and El Bluff in Nicaragua,
where it was processed and packed as a frozen
product and later shipped to export markets.
That, as stated before, from nineteen seventy
four (1974) to nineteen eighty (1980) he did not
participate directly in fishing activities in open
sea because he was managing his WILL
BOWER company, with which he operated his
own vessels and contracted his own captains
and crews; but he is also aware that these
410NR, Vol. II, Annex 13.c.
411For a detailed analysis of the dispute see NR, Chap. IV.
134 vessels operated normally in the north up to
parallel seventeen (17) as part of the
Nicaraguan fishing zone in the Caribbean Sea.
He can confirm this because as owner of this
company, it was his duty to constantly monitor
the positions of his vessels and ali the daily
details that are partf fishing activity. [... ]
[U]p until nineteen seventy-four (1974), when
he was fishing in that area up to parallel
seventeen (17), in which it was common to see
Nicaraguan boats working alongside foreign
boats operating with Nicaraguan licenses, they
never detected any presence of Honduran
civilian or military authorities and he never
knew of any problem between these vessels and
Honduran authorities." 412
Mr. Leonel Aguirre Sevilla, who held the position of General Manager
of PESCANICA S.A. between 1970 and 1979, states that:
"Said company at that time had the largest
shrimp fleet, comprised of thirty (30) industrial
vessels, each one measuring over seventy-two
feet in length, ali of which operated under the
commercial fishing license of the PESCANICA
S.A. Company, and each of their respective
permits and navigation patents issued by
Nicaraguan authorities. In his role as General
Manager, one of his responsibilities was to
monitor, up to twice a day, the positions of the
ships and other details pertinent to fishing
activities; and that it was common that severa!
of the vessels frequently carried out fishing
activities in the North, up to Parallel seventeen
(17)."413
6.110 Nicaragua has controlled the activities of fishermen to the north of
the parallel of 15° N, including the area in which the islets in dispute
in the present proceedings are contained. The National Guard of
Nicaragua acquired a number of new patrol vessels in 1975. As is
explained by Mr. Arturo Mohrke Vega, at that time a Colonel in the
Navy of War of the National Guard of Nicaragua:
412
413NR, Vol. II, Annex 24.
NR, Vol. II, Annex 25.
135 "Sorne of these were assigned to operate in the
Nicaraguan Caribbean Coast, to carry out
patrols in areas around parallel seventeen (17).
At no time were there conflicts either with
fishermen or between the Navies of War from
both countries, but both organizations
maintained frequent radio communications.
Both the appearing party and other boat
captains from the Navy of War and traditional
and commercial fishermen were sure that the
mant1me border between Nicaragua and
Honduras was not paralle1 fifteen (15), but
rather the oblique line that began at the mouth
of the Coco River in the Caribbean sea and
proceeded northeast. That the Hondurans were
fully aware of this, both the Navy of War and
fishermen, who did not navigate or work south
of that 1ine. That everyone was aware that the
cays and banks that were south of that line
belonged to Nicaragua, but not the Vivorillos
and Cajone414 Cays, which be1onged to
Honduras. "
Thus, not only did Nicaragua patrol the area in dispute, but this was
accepted by Honduras. Mr. Clark McClean, who fished in the area in
dispute from 1975 unti1the 1980s a1so indicates that the area around
the isletsin dispute was being patrolled by Nicaragua 415
6.111 The deposition of Mr. Morgan Britton indicates that the islets in
dispute in the present proceedings were not permanently inhabited,
although there were fishermen who used sorne of the cays and banks
near Cape Gracias a Dios as an intermediate resting place during
their fishing activities.6 This confirms what is said in this respect in
two of the depositions annexed to the Counter-Memorial 417 and
refutes the Honduran assertion that the islets have been inhabited for
a long time.
6.112 In the Counter-Memorial, Honduras expressly recognizes that
Nicaragua has patrolled the area north of 15° N, including the islets
in dispute in the present proceedings. 418 However the language in
414NR, Vol. II, Annex 23.
415NR, Vol. II, Annex 22.
416
417NR, Vol. II Annex 24.
41XSee sCpra paras. 6.108 and 6.190.
ee H M, Vol. 1, para. 6.42.
136 which this admission is couched is not acceptable to Nicaragua. For
instance, the Counter-Memorial concludes:
6.113 While the Nicaraguan presence is found to be "bothersome" by
Honduras, the Honduran presence has impeded the activities of
fishermen that have been duly licensed by Nicaragua. For instance,
one witness has noted that:
"In recent years, he knows that there have been
sorne problems with Honduran authorities in
the area from parallel seventeen (17) to fifteen
(15) which has affected fishing operations of
Nicaraguan vessels and foreign vessels still
operating under a Nicaraguan license, and he is
even aware that there have been sorne seizures
of boats and fishermen by Honduran
authorities; because of this he has instructed his
captains to not enter that fishing zone, as any
seizure of one of his vessels or crew members
would imply major !osses for his company." 419
2. Oit concessions
6.114 The practice of Nicaragua in respect of the granting of concessions
for the exploration and exploitation of oil and gas has been discussed
above in connection with the practice of Honduras in this respect.
The conclusions reached at that point can be recapitulated as
follows. The practice of Nicaragua and Honduras shows that a) there
was no agreement on the existence of a line of allocation of
sovereignty; and b) Nicaragua considered that the islets in dispute in
the present proceedings formed part of her territory.
3. The Recognition of Nicaraguan Sovereignty by Third States
6.115 Honduras maintains that no third State has recognized Nicaraguan
sovereignty over the islets north of the parallel of 15° N.20However,
there are a number of instances in which such sovereignty was
recognized and it was explicitly or implicitly acknowledged that the
parallel of15° N did not constitute aline of allocation of territory or
a maritime boundary. A first instance to which reference can be
made is the t:urtlefishing dispute between Nicaragua and the United
419
NR, Vol. II, Annex 24. An example of Honduran harassment of Nicaraguan authorities
is provided by the Note DAJ No. 056 of 19 April 1983 (NM, Vol. II, Annex Il). The
situation in the area in dispute in theand beyond is described in detail in Chap. V of
420 Memorial.
HCM, Vol. 1,para. 6.78.
137 421
Kingdom, at the end of the 19 andhbeginning of the 20 centuryh
Fishermen from the Cayman Islands also visited islets to the north of
the parallel of 15° N and Nicaragua indicated that she considered to
have sovereignty over at )east one islet to the north of this parallel.
The United Kingdom accepted that it had to negotiate an agreement
with Nicaragua to settle the dispute over the turtle fishery and
Honduras was in no way involved in this dispute.
6.116 Nicaragua and Jamaica conducted negotiations on the delimitation
of a maritime boundary in 1996 and 1997. During the second and
third meetings between the two States delimitation !ines were
422
presented and discussed. A Jamaican proposai for the delimitation
of the maritime boundary recognized Media Luna Cay as part of the
. fN. 4"~
terntory o 1caragua. --
6.117 These negotiations indicate that Jamaica has not recognized that the
islets in dispute between Nicaragua and Honduras in the present
proceedings are Honduran. On the risk of stating the obvious, the
Jamaican position also implies that she did not consider that the
parallel of 15° N served to limit the maritime areas or sovereignty
over islands of Nicaragua. In other words, Honduras is mistaken
when she submits that Jamaica had recognized Honduran
sovereignty and 424isdiction in the area in dispute between Nicaragua
and Honduras.
III. Conclusions on the Nicaraguan Arguments concerning the Title to
the Islets in Dispute
6.118 The evidence provided by Nicaragua indicates that, compared to the
evidence presented by Honduras, and if ali circumstances are taken
into consideration, there can be no doubt that the title to the islets in
425
dispute rests with Nicaragua. This concerns in particular:
a) To establish the situation in 1821, the date of independence
of Nicaragua and Honduras, reference can be had to the
location of the islets in dispute in relation to other territories
of the states concerned. The islets are adjacent to other
Nicaraguan territory, but not to other territories of Honduras.
421
422This dispute is discussed in more detail in Chap. IV.
See NR, Vol. II, Annex 32.
423See NR, Vol. II, Annex 33.
424For the Honduran affirmations in this respect see HCM, Vol. 1,para. 6.68.
425
The conclusions in respect of Honduras are presented above at para. 6.87.
138 This fact indicates, in the absence of any other title, that the
islets in dispute in the present proceedings in 1821 were part
of Nicaragua.
b) The turtle fishing dispute between Nicaragua and the United
Kingdom confirms this title of Nicaragua over the islets and
an absence of an interest of Honduras in the islets. The
existence of a Nicaraguan title to the islets in dispute is
highly significant as it indicates that there rests a burden of
proof on Honduras to demonstrate that this title at a later
stage has reversed to Honduras.
c) The Arbitral Award of the King of Spain did not address the
title to the islets in dispute. However, the arguments of
Nicaragua and Honduras in the proceedings suggest that only
Nicaragua considered herself to have a title to the islets in
dispute.
d) Cartographie evidence ongmating from Nicaragua shows
that the parallelof 15° N was never considered to be either a
line dividing insular territory or a maritime boundary. No
such map depicts this parallel. In addition, the publication
Indice Geogrâfico de Nicaragua of 1971 indicates the islets
in dispute to be included in the territory of Nicaragua.
e) Nicaragua has regulated fishing activities in the area
including the islets for a long time, at least since the end of
1
the 19 hentury. Regulation of these activities has continued
in the 1980s and beyond.
f) The oil and gas concessions issued by Nicaragua in the 1960s
and 1970s indicate the absence of a line along the parallel of
15° N either allocating sovereignty over territory or serving
as a maritime boundary. The concession practice of
Nicaragua indicates that she considered to have sovereignty
over the islets in dispute.
g) There are a number of instances of recogmtwn by third
States of the fact that the territory and maritime zones of
Nicaragua are not limited by the parallel of 15° N.
139 CHAPTER VII
THE WEAKNESS OF THE HONDURAN ARGUMENT BASED ON
CONDUCT
1.Introduction
7.1 In the preceding chapters Nicaragua has shown that the alleged
effectivités of Honduras in the area in dispute do not confirm any
title based on the 1821 uti possidetis iuris426and are not an incipient
427
basis of such a title. The intention in this chapter is to reject the
existence of a boundary line based on the conduct of the Parties.
7.2 According to Honduras, Nicaragua "ignores the trad428onal use by
both States of parallel 15 as a boundary." The assertion is
frequently rer:eated that this boundary line arises from the conduct of
29
both parties.' Honduras also asks the Court to take this conduct
into account as one of the relevant legal circumstances in drawing
the boundary, according to the applicable norms of the International
Law of the Sea. This argument seems a reversai of the assertions in
her diplomatie notes that the boundary line already exists as a result
of the tacit agreement between the Parties, or Nicaragua's
430
acquiescence, that is, "consent evinced by inaction" against the
Honduran claim.
7.3 However, the argument of conduct as acquiescence is not
disregarded in this Reply because the Honduran Counter-Memorial
proposes elsewhere that the agreement referred to in Articles 74 and
83 of the 1982 United Nations Convention on the Law of the Sea can
be manifested - and, Honduras claims, is manifested between
Honduras and Nicaragua -"in the form of reciprocal conduct which
may show the existence of acquiescence or sorne other form of tacit
consent, capable of generating and/or modifying rights and
431
obligations between the parties."
426
See supra Chap. IV.
427See supra Chap. V and Chap. VI.
428See HCM, paras. 1.24-1.27.
429See HCM, paras. 2.25-2.28, 3.18-3.36, 4.26-4.27, 6.76-6.77, 7.15-7.25 and 8.4-8.5.
43°Continental Shelf(Libya/Tunisia), Ind. Op. Judge Ago, ICJ Reports, 1982, p. 97, para.
431
See HCM, para. 5.37.
141 1
7.4 In response it must be noted: 1) that the Honduran claim that the 15 h
Parallel is the boundary of maritime areas with Nicaragua was not
made formally until43282 or according to Honduras in her Counter
Memorial, 1979; 2) that the claim was immediately, rejected by
Nicaragua. Thus, the history of the dispute over the past twenty
years has been the history of a persistent dispute regarding the
relevance of the 15 h Parallel, and therefore an endless list of
Nicaraguan actions expressly contradicting the Honduran claim.
7.5 Ali in ali Honduras has only her own dogmatic assertions that
"Throughout this period Honduras continuously exercised sovereign
authority over the islands and waters north of the 15 h Parallel. It did
433
so openly and434thout protest from Nicaragua". But invoking a 435
"consistent" or "well-established and well-documented"
practice over an extended time prior to 1979 is not enough. Proof has
to be provided and Honduras fails to do this.
II. Conduct of the parties before 1963
7.6 Honduras asserts that Nicaraguan treatment of (history and)
historical titles is brief and rudimentary, particularly for the period
prior to 1963.
7.7 Having said this, and given the Honduran critique of the Nicaraguan
Memorial's brief historical analysis, one would expect Honduras to
provide a comprehensive and detailed analysis of this subject.
However, Honduras which - aside from the history of the diplomatie
exchange between Nicaragua and Great Britain on turtle fishing in
436
that part of the Caribbean - took care of the colonial period and
the entire 19 century in a page and a half, 437 and went on to deal
1
with the first half of the 20 h century (1906-1960) in Jess than one
page.438 In the end, Honduras wrote Jess than Nicaragua, which
devoted eleven pages to the period prior to 1963. 439
432See below Section IV.
433See HCM, para. 3.18.
434
See HCM, para. 3.21.
m See HCM, para. 3.24.
436See HCM, paras. 3.9-3.13. See supra Chap. IV.
437See HCM, paras. 3.3-3.8. See supra Chap. IV.
43gSee HCM, paras. 3.14-3.17.
439
See NM, III, pp. 21-31.
1427.8 Chapter 3 of the Honduran Counter-Memorial, which purportedly
focuses on "the historical and political background to the
proceedings," Jacks legal content pertinent to the matter at hand. If it
shows anything, it is that until the nineteen seventies, maritime
delimitation in the Caribbean was of no primary interest to the
Parties because they had very little population on that coast, the
display of public activities and services was limited and maritime
activities were reduced to traditional fishing activities of the
communities living in that area with no notion or concem for
boundaries.
7.9 With respect to the period from 1906-1960, the Honduran Counter
Memorial basically confines itself to quoting parts of the 1906
Arbitral Award and a paragrafch from the 1960 Judgment of the
Court upholding that Award. 4 0 Honduras finds it "striking" that
Nicaragua, in spite of having attempted during that period to contest
the land boundary determined in 1906, did not assert any claim to
the islands and maritime areas nor reserved her right to do so.
Honduras also contends that Nicaragua did not challenge "1he many 441
assertionsof sovereignty... by Honduras north of the 15 parallel."
7.10 The latter contention is baseless. There were no manifestations of
Honduran sovereignty regarding the islands, cays, banks and waters
in the area in dispute, and therefore, no need for protests. The
former, on the other hand, was unnecessary because, as the turtle
fisheries effectivités indicate, Nicaragua was exercising uncontested
sovereignty in the maritime areas in dispute. And if that were not the
case why would Nicaragua complain to Honduras, which waited
until 1982 or, according to their own as1ertion, until 1979 to
formally state her claim that the 15h Parallel was the maritime
boundary?
7.11 Another example showing that the Honduran claim to the Caribbean
north of the 15 h Parallel lacked any consistency, are the Notes sent
by the Honduran Foreign Minister on 16 November 1928 upon the
signing of the Barcenas-Esguerra Treaty, to his Nicaraguan and
Colombian colleagues. These notes reveal: 1) the non-existence at
the time of a traditional boundary at the 15 h Parallel, and 2) how
Honduras manipulates her own documents, given the construction
that the Counter-Memorial seeks to place upon the diplomatie notes.
440
441See HCM, paras. 3.14-3.17.
See HCM, para. 3.17..
1437.12 According to Honduras:
"In these Notes, Honduras stated the following:
first, that she considered as applicable the
reference of the 1906 Award to Cape Gracias a
Dios and to the exact limit there established as a
borderline; second, that the islands and adjacent
cays situated to the north of this line were
implicitly considered as Honduran, and not only
with regard to her neighbour to the south,
Nicaragua, but also in relation to other442n
Central American countries of the area."
7.13 However, this is not what the Notes of 16 November say, according
443
to the English translation provided by Honduras in her annexes.
The Note to Nicaragua states that the Honduran government hopes
that the treaty between Nicaragua and Colombia "has respected the
territorial rightsof Honduras in the area of Cape Gracias a Dias,
and ta the West, adjudicated to this Republic by the Award made by
His Majesty the King of Spain on 23 December 1906..." (emphasis
added). Similarly, in her Note to Colombia, the Honduran
Government "assumes that in mentioning Cape Gracias a Dios" the
Colombian Government "will have taken into consideration the
rights adjudicated to Honduras in the said area and to the west, up to
Cape Camaron, by the Award made by His Majesty the King of
Spain on 23 December 1906..." lt shou1d be recalled that the islets in
dispute lie in an easterly direction.
7.14 This is not the only pearl to be found in the Honduran Notes of 16
November 1928, since the Note to Colombia expresses the
Honduran Government's "surprise" at seeing Quitasuefio and
Roncador cays included in a Treaty with Nicaragua since, Honduras
alleges, she had sovereignty over them. If the "traditional" line
1
between Honduras and Nicaragua followed the 15 h Parallel, what
was the origin of these "uncontested legal titles" of Honduras over
Quitasuefio and Roncador which are 1ocated on paralle1s 14° and 13°
15' N? When did Honduras decide to silence 1hat claim? Could it
have been when it decided to adopt the 15 h Parallel policy?
7.15 That there was no Honduran clairn to the disputed area before the
better part of the 201hcentury is also highlighted by the fact that as
Jate as 21 February 1957, shortly before the Application by
Honduras was made in the case of the Arbitral Award of the King of
Spain, the Department of Gracias a Dios was created without making
442
443See HCM, para. 3.15.
See HCM, Vol. 2, Annexes, 15and 16.
144 reference to the islets and cays presently in dispute. The decree
indicates the limits of this Department as "to the North and East with
the Caribbean Sea; to the South, with the line which follows the
thalweg of the Segovia River also known as Coco to its mouth; to
444
the West, with the Meridian 85 degrees west of Greenwich."
According to this legal definition, the graphie representation of said
department made in the Honduran Counter-Memorial, including
445
islets, cays and fishing banks, is merely a fiction.
III.Conduct of the parties between 1963 and 1977
7.16 In the chapter devoted to "the historical and political background to
the proceedings," Honduras covers the years 1960-1979 in forty-one
lines, thirteen of which are taken up by the reproduction of part of a
1972 diplom446e note, which, like the entire section, is
insubstantial. After ail, Nicaragua devotes six pages to the 1963-
1980 period,. including considerations that continue to be totally
447
relevant and to which we also refer here.
7.17 lt is interesting to observe that Honduras makes no effort to explain
her position in the process of codification and progressive
development of the International Law of the Sea at the III
Conference of the United Nations or in contradicting the views of
448
Nicaragua on this subject in her Memorial.
7.18 In dealing with "the conduct of the parties between 1960 and 1979"
Honduras notes that it took such forms as the grant of oil and gas
concessions, the regulation of fisheries, and the exercise of civ449and
criminal jurisdiction, referring to Chapter 6 for further details.
7.19 However:
1) No document is provided indicating the exercise of civil and
criminal jurisdiction in the area in dispute during this period.
2) Nor are there any effectivités related to the fisheries; to the contrary,
it has been demonstrated that during this period the Nicaraguan
444See HCM, Vol. 2, Annex 63.
445See HCM, Plate 10 "Administrative Region of Gracias a Dios (Inclusive of Islands and
Fisheries Banks"), between pp. 90 and 91.
446See HCM, paras. 3.18-3.21.
447See NM, IV, pp. 33-38.
448
449See NM, IV, B.
See HCM, paras. 3.18-3.21.
145 coastguard patrolled north of the 15 1h Parallel to enforce compliance
with Nicaraguan fishing legislation. (see Chapter V above)
3) There is no basis for the assertion that Nicaragua accepted Parallel
14° 59.8' N (in its adulterated version 14° 59' 08") as a maritime
boundary based on her behavior in the granting of oil exploration
concessions on the continental shelf. 450
1
7.20 During this period Honduras never made a formai claim to the 15 h
Parallel, as a maritime boundary with Nicaragua in the Caribbean,
not even based on its oil concessions. Not a single diplomatie note
supports Honduras' supposed claim, faced with which Nicaragua's
silence could have been interpreted as acquiescence. In fact, one
must wait until 1995 to discover the first trace in the diplomatie
correspondence that the Honduran Foreign Ministry said it
considered the oil concessions as evidence of a traditional boundary
in the Caribbean Sea. 451
7.21 Honduras has to resort to a Note (N° 686, Il April 1972) from her
Minister of Foreign Affairs to the Ambassador of Nicaragua in
Tegucigalpa over the close season of shrimp fishing to try to give
credibility to her supposed practice and Nicaragua's alleged
passivity. 452This is ali that Honduras was able to find in the Foreign
Ministry's archives. But the Note only reports that the Ministry of
Natural Resources of Honduras had decided to impose a prohibition
on the fishing of shrimp between April 10 and May 10 of that year
"in the area of the jurisdictional sea between the mouth of the Patuca
river and Cape Gracias a Dios," requesting Nicaragua's cooperation
"in transmitting this resolution to the fishing vessels... which operate
near to the area in question." Why would Nicaragua have reason to
respond negatively to this kind of announcement of conservation
measures in an area near the mainland coast located west and north
453
of Cape Gracias a Dios?
7.22 In its recent Judgment of 10 October 2002 (Land and Maritime
Boundary between Cameroon and Nigeria) the Court concludes,
after consideration of the jurisprudence, that oil concessions and oil
wells "only if they are based on express or tacit agreement between
450See supra Chap. V.
451See Note N. 226-SAM-95, of Il July 1995, and N. 363-SAM-95, of 27 December 1995
(HCM, Vol. 2, Annexes 54 and 56).
452
453See HCM, para. 3.19, and Vol. 2, Annex 17.
The note could even be seen as the admission that Nicaraguan fishermen carried out
their workin said area, without any control from Honduran authorities.
146 the parties may they be taken into account". 454 But neither in this
case nor in any other case to date has the existence of a maritime
boundary been decided through the assertion of a tacit agreement
based exclusively on the conduct of the parties related to the
455
granting of oil concessions.
7.23 In any case, the circumstance of granting concessions in the area in
dispute does not justify the conclusion that a tacit agreement existed.
In the first place, the drilling of wells based on an administrative
concession does not in itself provide a basis to assert a title over a
specifie area. 456In dealing, on the other band, with a dispute over
territorial sovereignty, it is not appropriate to assume lightly the
consent of a State from its silence. One could perhaps accuse the
Nicaraguan Government during that period of excessive prudence in
its attempts to avoid conflicts following the resolution of the long
standing dispute over the land boundary, or even of lack of foresight
that Honduras could use her oil concessions in the future to obtain
advantage in a delimitation of the continental shelf. But it is
inappropriate to conclude, from the fact that she did not formally
protest the Honduran concessions, that this implied consent to a
1
boundary line for the continental shelf in the Caribbean at the 15 h
Parallel. To claim acquiescence, Honduras would have had to
express a clear claim calling for a positive reaction from Nicaragua,
457
i.e., a protest or an objection. In fact, once Honduras finally
formulated that claim, Nicaragua did reject it vigorously and
insistently. The fact that Nicaragua's silence was not tantamount to
acceptance of a boundary is implicit in the fact that the Nicaraguan
concessions left their northern boundary undefined awaiting a
maritime delimitation with Honduras. These concessions, in turn,
were not protested by Honduras, as would have been appropriate if
the latter felt they violated her territorial sovereignty and
jurisdiction.
454Judgment of 10 October 2002 (Land and Maritime Boundary between Cameroon and
Nigeria),para. 304. The Court declares in clear-cut terms that "oil concessions and oil wells
are not in themselves to be considered relevant circumstances justifying the adjustment
or shifting of the provisional delimitation line" (ib.). See supra Chap. V.
455
See Delimitation of the Maritime Boundary in the Gulf of Maine Area (ICJ Reports,
1984, pp. 310-311, paras. 149-152); Continental Shelf(Libya/Malta) (ICJ Reports, 1985,
PK 28-29, paras. 24-25).
4 6"The existence of actual drilling or exploitation in a certain place cannot be considered
in the present circumstances to base a title on prescription, or on prior user or occupation,
nor is it to be assimilated to 'historie title'... " noted Judge Jessup in the sep. op. in the cases
of the North Sea Continental Shelf (20 February 1969), ICJ Reports, 1969, p. 80.
457Acquiescence, according to the classic definition by Mac Gibbon ("The Scope of
Acquiescence in International Law", BYBIL, XXXI, 1954, p. 143): is the "silence or
absence of protest in circumstances which generally cali for the positive reaction signifying
an objection."
1477.24 To strengthen her case, Honduras invokes as a precedent the
reasoning of the Court in the case of the continental shelf between
Libya and Tunisia: the coïncidence between Nicaragua, whose
concessions did not surpass the l51h Parallel, and Honduras, whose
concessions did not go south of that same parallel - "it is hard to
distinguish from the coïncidence of Libyan and Tunisian practice in
observing the 26 degree line from Ras Adjir (sic)." 458 It is not
possible to see this line of coïncidence, H459uras concludes "as
anything other than a maritime boundary".
7.25 The Honduran comparison does not hold up if one goes a few steps
beyond a superficial reading. To determine the boundary line
between Tunisia and Libya the Court takes into account, first of ail,
the geographical context of the dispute and a number of geographical
features which should be taken into account as relevant
circumstances which characterize the area, among them the general
direction of the coast, the change in the direction of the coastline
("not far west of the point [Ras Ajdir] at which the land frontier
between Libya and Tunisia commences on the sea coast"460), the
body of islands, islets and low-tide elevations which form a
constituent part of the Tunisian littoral, and the position of the
undisputed land frontier ("or more precisely the position of its
intersection with the coastline" 46). Ali of them are legally
significant in the context of the application of equitable principles.
After taking into account the particular geographical situation, and
especially the extent and features of the area found to be relevant to
the delimitation, in order to satisfy the fondamental requirement of
achieving an overall equitable result, the Court divided the area into
two sectors (the sector close to the coasts of462e Parties and the
sector further offshore) to be treated differently.
458See HCM, para. 7.18.
459See HCM, paras. 7.18-7.19.
460/Cl Reparts, 1982, p. 34, para. 19.
4 1
4~2!Cl Reports, 1982, p. 64, para. 81.
/Cl Reports, 1982, p. 82, para. 114.
1487.26 The line established by the Court as a boundary did not coïncide
with the lines claimed by the Parties, both of which were rejected, 463
but rather a third, "the line designed to be 'normal' or
'perpendicular' to that section of the coast where the land frontier
begins." 464
7.27 The Court noted "the existence of a de facto line from Ras Ajdir at
an angle of sorne 26° east of north, which was the result of the
manner in which both Parties initially granted concessions for
offshore exploration and exploitation of oil and gas." This line of
adjoining concessions, "tacitly respected for a number of years and
which approximately corresponds furthermore to the line
perpendicular to the coast at the frontier point," does appear to the
Court to constitute "a circumstance of great relevance for the
465
delimitation."
7.28 However:
1) This line had a precedent: it went back to a tacit modus
vivendi between Italy (which had succeeded Turkey in
sovereignty over Tripolitania) and France (which
exercised the protectorate over Tunis) establishing- as of
1914 based on Italy's proposai and with no objection
from France - a dividing line between the Libyan and
Tunisian sponge banks that was respected for many
years. In the present, there has never been such a
Honduran proposai;
2) On the other band, in spite of the fact that data could
point to the existence of a tacit agreement because of a
French acquiescence over the Italian proposai (a view
reflected in the individual opinions of two of the judges
that voted in favor of the Judgment 466), the Court
accepted the modus vivendi "as a historical justification
463Tunisia claimed the ZV (Zenith vertical) 45° line northeast, and Libya, the northward
line continuing seawards the last segmentof the land frontier. Both claims had been
translated into laws or old official maps annexed to them that the court understood as not
opposable to the other Party (ICJ Reports, 1982, pp. 67-69, paras. 88-92, 117). Specifically
in reference to the Libyan claim, the Court notes: "There is no doubt that Libya in 1955, by
enacting the Petroleum Law and Petroleum Regulation N° 1, purported to claim sovereign
rights over shelf resources; but the mere indication on the map of the tine in question is not
sufficient even for the mere purpose of defining a formai claim at the levet of international
relations to a maritime or continental shelf boundary" (lb. p. 69, para. 92). The Honduran
claim did not figure in Honduran legislation.
464/CJ Reports, 1982, p. 70, para. 93.
465/CJ Reports, 1982, p. 71, para. 96.
466Judge Ago (ICJ Reports, 1982, pp. 95-98) and the ad hoc judge named by Libya,
Jiménezde Aréchaga.(lb., pp. 131-132).
149 for the choice of the method for the delimitation of the
continental shelf between the two States," but considered
"that the evidence of the existence of such a modus
vivendi, resting only on the silence and Jack of protest on
the side of the French authorities responsible for the
external relations of Tunisia, falls short of proving the
existence of a recognized maritime boundary between the
two Parties"467;and,
3) The Court states specifically, concerning the de facto line
dividing the concession areas, that it "is not here making
a finding of tacit agreements between the Parties - which
in view of their more extensive and firmly maintained
daims, would not be possible- nor is it holding that they
are debarred by conduct from pressing daims
inconsistent with such conduct on sorne such basis as
estoppel." The aspect now under consideration "is what
method of delimitation would ensure an equitable result"
and the Court "must take into account whatever indicia
are available of the line or !ines which the Parties
themselves may have considered equitable or acted upon
as such - if on!y as an interim solution affecting part on!y
of the area to be delimited." 468
4) In this connection, the Court notes that "Libya, while
emphasizing that the de facto line between the
concessions was 'at no time accepted by Libya as the
legal line of delimitation,' observed that it was one that
did 'suggest the kinds of !ines that, in the context of
negotiatiOns, might have been put forward for
discussion,' that is t469ay, with a view to achieving an
agreed delimitation."
5) However, the line thus adopted was not arbitrary. The
Court recalls "that in the context of delimitation of the
territorial sea, the methods of delimitation, other than
equidistance, examined by the Committee of Experts for
the ILC in 1953 were the continuation in the seaward
direction of the land frontier, the drawing of a
perpendicular to the coast at the point of its intersection
467/Cl Reports. 1982, p. 70, para. 95.
46x/Cl Reports, 1982, p. 84, para. 118. See also /Cl Reports, 1985, p. 212, para. 37, where
the Court clarifies what it considered important in the "alignment" of the Iimits of the oil
concessions, to with, the indication the type of Iine that the two parties considered
46uitable at that date and up to a certain latitude.
Y /Cl Reports, 1982, p. 84, para. 118.
150 with the land frontier, and the drawing of a line
perpendi470ar to the line of general direction of the
coast."
6) And the Court adds: "The factor of perpendicularity to
the coast and the concept of prolongation of the general
direction of the land boundary are, in the view of the
Court, relevant criteria to be taken into account in
selecting a line of delimitation calculated to ensure an
equitable solution," 471 for Judge Ago, even "the most
equitable" one and "the one which best safeguards the
equality of the rights of the two adjacent countries" in
relation to a coastline with the characteristics of the
African coast on either side of Ras Ajdir. 472
7) Precisely because it understands that it would not be
equitable, the Court does not extend the line of the first
sector (in which it takes into account, among other
factors, the practice of concessions) to the second, very
influenced by "the radical change in the general direction
473
of the Tunisian coastline." "lt would not... be proper to
assume," the Court notes, "that, because the Parties were
ready to adopt this line to demarcate concessions
comparatively close inshore, they would both necessari474
acceptas equitable its effects further out to sea..."
7.29 The reason for admitting conduct as a circumstance relevant to
delimitation is the consideration that the Parties associate it with an
equitable result. lt is obvious that it is not possible to attribute to that
circumstance a preferential value because, in that case, the result
would be a configuration of conduct as a tacit agreement. On the
other hand, the fact that one or both Parties repudiate the line does
not exactly increase the value of the conduct as an indication of the
perception of equity. In the end, the harmonious conduct of the
Parties over a certain period, up to a certain point, and regarding
these activities, ends up being a circumstance that corroborates and
confirms the equitable character of a specifie line determined by
judges or arbitrators based on ali the circumstances, primarily
geographie, relevant to the area affected by the delimitation. If what
is equitable, according to these circumstances, does not match that
conduct, the conduct by itself cannot be considered relevant. And it
470JCJ Reports, 1982, p. 84, para. 119.
471ICJ Reports, 1982, p. 85, para. 120.
472/CJ Reports, 1982, p. 97, para. 4.
473JCJ Reports, 1982, pp. 85-87, paras. 121-124.
474
/CJ Reports, 1982, p. 87, para. 125.
151 is dear that although the method of using the 15 h Parallel as a
division in the context of Honduran and Nicaraguan branches of the
same United States oil companies was convenient for their own
ends, by no means can it be considered as equitable for the Parties
who today bring their claims before the Court, taking into account
ali the relevant circumstances of the area.
IV. The conduct of the parties since 1977
7.30 Honduras attempts- and does so repeatedly throughout the Counter
Memorial- to daim that Nicaraguan practice changed radically after
475
the triumph of the Sandinista Revolution in July 1979. Honduras
goes as far as to assert that because of this, and, having presented no
evidence whatsoever as to the exercise of sovereignty or jurisdiction
north of Parallel !5° N, Nicaragua "is estopped from making such a
claim." 476
7.31 The change of practice only exists, however, in the imagination of
Honduras. This is confirmed by the negotiations proposed by the
Nicaraguan Government in 1977 - two years before the 1979 change
477
of Government-, the corresponding exchange of diplomatie notes,
and the statements by the Nicaraguan Foreign Minister published
that same year. 478 Honduras is economical with the truth when
referring to the diplomatie correspondence 479ween the Parties when
she asserts "ali of which post-date 1979."
7.32 The Nicaraguan Government that came into power in 1979
emphasized, but did not alter, a path that had already been marked. It
did so not only out of its renewed national consciousness but also
because it governed during a time when the focus on maritime
resources coincided with the culmination of expansionist policies
regarding the sovereignty and jurisdiction of coastal States over
maritime areas adjacent to their coasts. After July 1979 Nicaragua
did not ignore, as Honduras daims, nearly a century of effective
control by Honduras over the area in dispute, simply because this
control did not exist.480
475See, i.e., HCM, paras. 5.36, 6.63, 6.69. 7.17 and 8.7.
476See HCM, para. 8.9.
477See NM, II, Annexes 4 and 5; HCM, Vol. 2, Annex 20.
m See NM, IV, D.
480see HCM, cara. 1.29.
ee supra hap. V.
1527.33 If there was a change during this period it was on the part of
Honduras, who saw in the 15 1h Parallel doctrine a means of
expanding to the maximum her territory in the Caribbean Sea, and
found in the armed conflict with Nicaragua an opportunity to
practice engineering of the effectivités,and discovered in Colombia
and vice versa - a natural ally to trample the rights of Nicaragua,
ignoring any sense of belonging to the Central American
community. This prompted Nicaragua to file a case against
Honduras before the highest judicial organ in the Central American
region, the Central American Court of Justice. See above Chapter
III, paragraph 3.33.
7.34 According to Honduras, the bilateral negotiations held at the end of
the seventies.,"are in no way inconsistent with the general pattern of
the practice of the two States and, contrary to what is suggested by
Nicaragua, do not point to any uncertainty on the part of Honduras
regarding her sovereignty over the islands and maritime areas north
1
of the 15 harallel. The acceptance by Honduras of the proposais for
negotiations and the opening of bilateral consultations," the Counter
Memorial maintains "was motivated only by an entirely
understandable desire to achieve a written agreement formally and
finally delimiting the single maritime boundary along what was
already a line accepted and applied in practice, and fully respected
481
by both Parties until that time." However, it is only necessary to
review the notes exchanged in 1977 to recall the ample and
unconditional terms of the negotiations proposed by Nicaragua and
accepted by Honduras.
7.35 Nicaragua has maintained and maintains that the defense of the 15 h
Parallel as a purported maritime boundary is part of the Honduran
policy taken on later and formally expressed only in 1982, or if the
Honduran explanation is accepted, 1979. Honduras is the one that
should show, in her case, that this is not true: to do so it mu482go
beyond denying that statement by invoking a "consistent" or
"well-established and well-documented" 483 practice during the
extremely long period prior to 1979, no trace of which has been
found.
7.36 Honduras persistently seeks a contrast between the attitude of the
Nicaraguan Government before and after the 1979 Revolution, and
expresses this in caricature: while Honduras continued her peaceful
administration of "her" islands and maritime areas north of the 15 1h
Parallel, Nicaragua "ignored her own practice for weil over a century
481See HCM, para. 3.20 and 3.22.
482
483See HCM, para. 3.21.
See HCM, para. 3.24.
153 and aggressively began to advance its claim in the Caribbean
484
Sea." The only aggressions occurring during that period were
being committed against Nicaragua, as can easily be attested in the
cases brought to the Court by Nicaragua in the eighties against the
485
United States and Honduras.
7.37 No such contrast exists, just as there was no shift in the policy on
maritime territory after 1990 when, again, Governments of different
political colours assumed the Government of Nicaragua.
7.38 Honduras falsely accuses Nicaragua of artificially creating a
controversy by detaining, inspecting, and seizing Honduran fishing
boats within the jurisdictional waters of Honduras. Thus, when the
coastguard is Honduran and the fishermen are Nicaraguan this is
called an effective control of islands and maritime areas; however, if
the fishermen are Honduran and the coastguard Nicaraguan, this is
considered harassment, aggression and incursion. If the Nicaraguan
486
practice is "recent and fragile," how can that of Honduras be
described?
7.39 In general on this point the obvious must be recalled. It is juridically
inconceivable that Nicaragua could possibly have followed a
centennial practice of accepting Parallel 15° N as the boundary line
with regard to the continental shelf or exclusive economie zone.
7.40 Turnin h~r attention to "the legislation of the parties on maritime
areas," 87 Honduras states that the Nicaraguan Continental Shelf and
Adjacent Sea Act, of 19 December 1979, was enacted in the context
of the country's political revolution. This law declared Nicaraguan
sovereignty and jurisdiction over an area 200 miles from her coasts.
This step was not unprecedented. Similar legislation had been
enacted in severa! countries in the region and had precedents even in
Nicaragua.
4 4
x See HCM, para. 3.23. The idea cornes back in para. 3.25: "The Sandinista
Revolution ...resulteda dramatic change in Nicaragua's policy concerning the maritime
areasthat traditionally appertained to Honduras and Nicaragua in the Caribbean Sea". Later
on, in para. 6.2: "Honduras' exercise ofjurisdiction and state functions has been continuous
and uninterrupted and,ntil the change of Government in Nicaragua in 1979, peaceful".
4x See case concerning Border and transborder anned actions (Nicaragua v. Honduras)
and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America. See aiso military and paramilitary See supra Chap. V, para. 5.4.
4 6
4 7See HCM. para. 3.24.
x See HCM, paras. 3.25-3.26.
1547.41 In effect, the 1979 Nicaraguan law, is a continuation - as even the
488
HCM acknowledges - of a series of previous regulations, both
constitutional (the Constitutions of 1948, Art. 2; 1950 Art. 5; 1974,
Art. 3) 489 and legislative (the Fishing Exploitation Act of 20
December 1960; Decree No. 557 of 20 January 1961; Decree No. 1
L, 5 April 1965, establishing a national fishing zone of 200 nautical
miles).490
7.42 At about the same time, according to Honduras, Nicaragua "also
sought to make a tabula rasa of her relations with other countries,
unilaterally declared null and void the 1928 Treaty concerning
Territorial Questions at issue between Colombia and Nicaragua (a
treaty long considered as in force and duly registered at the League
of Nations)." 491It must be recalled that the dispute with Colombia
over the interpretation of this Treaty dated at least form the 1960s
and did not reflect a change of policy of the new Govemment but, at
most, a change of style.
7.43 But in any case, these are different situations. There is no tabula
rasa with Honduras, simply because there is no tabula.
7.44 To illustrate her statement about a change in position after the
Sandinista Government took power, Honduras refers to
conversations supposedly held in January 1979 as a result of
Nicaragua's 1977 proposai, which had been accepted by Honduras.
According to the Honduran account, her delegation clearly stated
that the 151h parallel N had always been respected as the traditional
boundary and consequently the object of such conversations had to
be the express recognition of the parallel through a definitive
agreement. "These negotiations," Honduras adds, "were interrupted
492
by the Nicaraguan Revolution of July 1979." Honduras does not
provide the specifie dates of this meeting, nor any documentation,
much Jess any mention of the position taken by Nicaragua. For her
part, Nicaragua has no record of this meeting, the occurrence of
which would seem highly unlikely in early 1979 given that this was
the peak of the armed confrontation that toppled the Govemment
then in power in July 1979. The Deputy Minister of Foreign Affairs
of Nicaragua at the time of these alleged negotiations was the person
488See HCM, para. 3.27..
489See NR, Vol. Il, Annex 34.
490See NR. Vol II, Annex 13.a and 13.c.
491
492See HCM, para. 3.26.
See HCM, para. 3.42.
!55 in charge of legal matters and he does not recall any negot493ion
during this chaotic period in the history of the country.
7.45 If incidents occurred after that time apart from the political climate,
it must also be recalled that the difference matured at a time when
coastal States were extending their activities over the adjacent seas
and looking for a more systematic and commercial utilization of
natural resources.
7.46 Honduras tells of the incident on 18 September 1979, in which the
Nicaraguan Naval Force captured a Honduran fishing vesse) in
waters near Alagarto (or Alargate or Alargado) Reef, eight miles
1
north of the 15 h parallel. Honduras maintains that in the note of 21
September 1979 her Foreign Minister had already emphasized that
the incident had taken place "eight miles north of the fifteenth
parallel that serves as the limit between Honduras and Nicaragua,"
494 and that this observation was not objected to by the Acting
495
Foreign Minister of Nicaragua who offered - in the note of 24
September 1979 - to consider this matter according to the existing
fraternal relations.496
7.47 To emphasize is "to bring (a thing, fact, etc.) into special
prominence" or "to lay stress on (a word in speaking)." 497The 21
September 1979 note may have been the first diplomatie text in
which Honduras referred to the 151h Parallel as the boundary
between Honduras and Nicaragua, but it seems exaggerated to cali
emphatic what appears to be a collateral remark. The Nicaraguan
note reveals that the official in charge of the Foreign Ministry
limited himself to a polite answer in the face of an incident that had
occurred only two months after the triumph of the revolution and the
subsequent change of Government in Nicaragua and avoided going
into issues of principle which, thereafter, when they were set forth as
such, received a firm and unequivocal response. The note from the
Foreign Ministry, in fact, practically repeats the same terms as the
Honduran note, except for any reiteration of the explanation of the
alleged events and the consequences drawn by Honduras.
4 3
Y See Affidavit of Mr. Harry Bodan-Shields, NR, Vol. II, Annex 35.
4~ See HCM, paras. 3. 37-3.38, and Vol. 2, Annex 21. This note is not found in the
archivesof the Nicaraguan Ministry of Foreign Affairs.
4~5At that time, this was Âlvaro Ramfrez Gonzalez.
496See HCM, para. 3.38, and Vol. 2, Annex 22. This note is not found in the archives of the
497araguan Ministry of Foreign Affairs.
See The Oxford Compact English Dictionary, Oxford University Press, 1998.
1567.48 Similarly, the Counter-Memorial alludes to a confidential report
from 12 July 1982, addressed to the Minister of Foreign Affairs of
Honduras by the Secretary of the Honduran Delegation which, three
days earlier, had participated in a meeting in Puerto Corinto
(Nicaragua) between the representatives of the naval forces of both
498
countries. The report reads: "With regard to the problems in the
Atlantic Ocean, the two delegations accepted that Parallel 14° 59'
08" (known as the 15thParallel) has always been respected as the
traditional maritime boundary between the two Republics and
wherefore, on the basis of this line... it could be possible to negotiate
the creation of a security and tolerance zone five miles to the North
and five miles to the South of the aforementioned Parallel, for the
purpose of reducing the number of incidents involving weapons and
to guarantee fishing and the safety of the fishermen of both
countries."499
7.49 The use of this type of report is questionab1e; in any case, the
members of the Nicaraguan delegation at the meeting have denied
the contents of the same. According to a sworn statement of
clarification made by Lieutenant Colonel Oscar Rafael Guevara
Oc6n, the primary instruction received by the members of the
Nicaraguan delegation attending the meeting was that "the issue of
maritime delimitation is a subject that should not be discussed under
any circumstances since, due to its very nature, it is beyond the
scope of military conversations." At the meeting, the Honduran
delegation proposed the establishment of a tolerance zone, both in
the Gulf of Fonseca and the Caribbean Sea, suggesting that this
could be five miles north and five miles south of the 15thParallel;
but "the Nicaraguan delegation soundly rejected this, refusing to
discuss the subject as per the instructions received from the High
Command." In the end, no document was signed by the
delegations.500
7.50 Is it believable that the sponsors of the "change" would endorse the
Honduran viewpoint regarding a traditional boundary in the context
of incidents and diplomatie correspondence to the contrary,
particularly, just a few weeks after the Note of 14 April 1982?
7.51 This seems even odder considering Note N° 060 DA, 9 February
1983, from the Honduran Minister of Foreign Affairs to the
501
Nicaraguan Ambassador in Tegucigalpa, about an incident which
had purportedly taken place between a Honduran fishing boat and a
498
499See HCM, p. 50, footnote 81, and p. 127, footnote 146.
500See HCM, Vol. 2, Annexes 24 and 97.
501See NR, Vol. Il, Annex 36.
This Note is reproduced in the HCM, Vol. 2, Annex 26.
157 Nicaraguan plane 15 miles northeast of Cape Gracias a Dios. In it,
Foreign Minister Paz Barnica notes that: "In order to prevent these
regrettable incidents, my Government proposed to Nicaragua the
creation of a series of mechanisms, contained in a document which
was delivered to the Nicaraguan authorities last year by the
Commander-in-Chief of the Honduran Navy during the meeting
which took place in Corinto, Nicaragua." It seems that if more took
place in said meeting a Note of protest such as this one would have
been an ideal place to recall those events.
7.52 The Minister of Foreign Affairs of Honduras when these events
transpired published his Memoirs in 1986. He refers to the meeting
in question in the following terms: "The first meeting took place
between the Chiefs of the Naval Forces during the month of July in
the Port of Corinto. On that occasion the Chief of the Honduran
Naval Forces presented to the Nicaraguan delegation an important
plan in order to avoid maritime incidents that included the creation
of demilitarized zones, zones of tolerance, the placement of buoys
along the maritime boundary, the continuation of the delimitation
tine in the waters of the Gulf of Fonseca and respect for parallel 15
in the Atlantic. Nicaragua promised to study the plan and respond
during the next meeting, which never took place because of the Jack
502
of decision and response from that country." If the Nicaraguan
officiais had accepted the Honduran proposai, the Foreign Minister
would certainly have made a note of this important diplomatie coup
in his memoirs but, quite the contrary, he specifically indicates that
no agreement was reached on this point.
7.53 One could say that Honduras seems to be uneasy when handling the
diplomatie correspondence, white the Nicaraguan Memorial is based
primarily on this correspondence in order to reconstruct the history
of the dispute. 503Honduras shies away from a full and systematic
examination of the correspondence, treating it in a very one-sided
manner, as if it were too hot to touch. When forced to admit the
statements made by Nicaragua, Honduras complains about the
implicit suggestions she perceives in these statements to the effect
504
that she has acted in bad faith.
7.54 One of the points that Honduras rectifies is the location of the final
point of the land border which, in turn, would be the starting point
05
for the maritime boundar/ and, according to Honduras, would be
502
Paz Barnica, Edgardo, La Polftica Exterior de Honduras, 1982-1986, Second Edition,
503torial Iberoamericana, Madrid, enero, 1986, p. 57.
504See NM, Chap. V.
505See, i. e., HCM, para. 1.30.
See NM, Chap. VII.
158 projected out to the intersection of the maritime areas of the parties
with those of a third State.06Honduras repeats the credo of 14°59.8'
N, acknowledging that any suggestion on ber part to locate the point
at 14°59' 08" N was the result of a translation error in 1963.
7.55 Although she cornplains that the Nicaraguan Memorial implicitly
507
suggests the presence of bad faith in sorne of Honduras' actions,
Honduras is not even willing to correct the errors of fact that she
acknowledges in ber 1986 Treaty with Colombia. The reasons for
not doing so are totally inconsistent. Obviously if it were true -
which it is not - that the traditional boundary between Honduras and
Nicaragua were 14° 59.8' N Nicaragua would have every right to
demand that Honduras modify the treaty she signed with Colombia
in 1986. The repetition in that treaty of a mistake about the location
of the end of the land border between Honduras and Nicaragua
(which was only established in 1962-1963) and its projection over
the Caribbean Sea to create a "traditional" and, as Honduras asserts,
centuries-old line demonstrates the superficial way with which
Honduras handles even the most basic documents, and creates
distrust about ber geographie and historical positions.
7.56 It is clear, on the other band, that Honduras now seeks an acceptable
framework for ber reinterpretation of the 3 May 1982 - Paz Barnica
- Note 508which makes it more than uncomfortable. lt is an operation
in three movements. Thus, in Chapter 1 Honduras attempts to
undermine the Note saying that it "is nothing more than a statement
of the obvious, namely that there bas not been a formai agreement
between the Parties as to the maritime boundary. That is not
inconsistent," it adds, "with the view that such a boundary is well
established by reference to historie title and the practice of the
relevant States."509
7.57 Later on, in Chapter 3, she suggests that the meaning of the Foreign
Minister's comment when he agreed with his Nicaraguan
counterpart that "the maritime border between Honduras and
Nicaragua bas not been legally delimited" could be, "in view of the
reaffirmations by Honduras over the traditional line in previous
Notes" nothing other "than to agree that the line was not defined in
510
terms of a formai and written bilateral treaty."
506See HCM, paras. 2.25-2.28.
507See HCM, para. 1.30..
508See NM, Vol. II, Annex 70.
509
510See HCM, para. 1.30..
See HCM, para. 3.41..
1597.58 And further: the statements by the Honduran Foreign Minister "do
not raise any doubts asto the existence of a traditionalline between
the two States; on the contrary, he reaffirmed it. Moreover, his
proposai of a temporary tine or zone was made only in the interest of
511
preserving peaceful relations between the two States."
7.59 Faced with ali of this, it is appropriate to reaffirm ali that has already
been stated by Nicaragua in her Memorial:
"The Honduran Government has done its bests
to substantially modify the scope of the Paz
Barnica Note under the pretext of its
interpretation. Nevertheless, this Note
recognized without qualification that the
maritime boundary had not been delimited and
Mr. Paz Barnica was in fact only recognizing
what his predecessors had already
512
acknowledged in the past".
7.60 The Counter-Memorial deals with the fishing incidents and the
diplomatie notes generated by the same under the title 513e policy of
harassment and incidents provoked by Nicaragua." Nicaragua
must begin by denouncing these incorrect statements phrased in such
514
undiplomatic terms that are used here and repeated elsewhere. It
cannot be considered "harassment" or "provocation" or "aggressive
incursions" 515 when the Naval Force demands respect for the
sovereignty and jurisdiction of the Republic. In this context,
Nicaragua cannot but point out that her Memorial has dealt with the
other Party in a much more respectful manner.
7.61 The witness statements of fishermen, to which Honduras resorts,
include contradictions: sorne of them say that they have never seen
Nicaraguan patrols; others claim to have been harassed by these
1 516
patrols north of the 15 h Parallel. In any case, the incidents
registered in the diplomatie correspondence prove that it was not
true that there were no Nicaraguan fishing boats and coastguards
511
512See HCM, para. 3.46.
511See NM, Chap. V. B.
See HCM, paras. 3.37-3.47.
514See, i.e., HCM, para. 6.42 : "Another fisherman, Mario Dominguez, maintained a
fishing base at South Cay for nine years until it was ransacked by Nicaraguans in December
2000." The authors of the Counter-Memorial have gone beyond the words of this
testimony:"he believes, on the basis of the account provided by the two persans that were
in charge of the installations that the offenders were Nicaraguan ..." See also, again, para.
5157.
516See HCM, paras. 3.37, 3.47 and 3.55.
See supra Chap. VI.
160 517
north of said parallel 15. Honduras, finally, concedes that "sorne
unauthorised fishing by Nicaraguan vessels has undoubtedly
1
occurred north of the 15 parahlel," but "the Honduran authorities 518
have vigorously attempted to stop ali (this) unauthorised fishing."
7.62 Aside from the fishing incidents, the Honduran Counter-Memorial
deals selectively with the diplomatie correspondence and the
contacts that took place during the nineties. 519In this connection:
i. Honduras maintains that she had no official
of the "unrealistic extension of the
knowledge
Nicaraguan claim... up to parallel 17'' before the
Nicaraguan diplomatie note of 12 December 1994. 520
Furthermore, in view of the Nicaraguan submissions,
it is incorrect to state, as Honduras does in the
Counter-Memorial, "that 1icaragua's 521im now
extends beyond the 17 h parallel" ;
ii. Honduras gives p522icular importance to her Note of
11 July 1995, and accuses Nicaragua of ignoring
the same. 523 This is not true. In fact, Nicaragua dealt
with this Note in paragraph 40 on page 52 of the
Memorial;
iii. In explaining the establishment and failure of the ad
hoc commission by the parties in 1996 to define a
joint fishing zone, Honduras speaks of the incidents
"created" by Nicaragua "in an attempt to reinforce its
juridica524osition through the expedient of a paper
claim," - a concept to be rejected - and says that
the Nicaraguan counterproposal consisted of
establishing a joint fishing zone between parallels 15°
and 17°,"that is to say, in Honduran waters." 525 This
is also incorrect: those were not Honduran waters but
rather waters in dispute and precisely as such were
517
518See supra Chap. V.
See HCM, para. 7.8.
519See HCM, paras. 3.48-3.57.
520See HCM, para. 3.50.
521See HCM, para. 3.50.
522
523See HCM, Vol. 2, Annex 54.
See HCM, para. 3.52..
524See HCM, para. 3.53. Honduras cites a phrase taken from Great Britain's suit against
Argentina and Chile (May 1955) on issues related to AntarcticaCJ Memorials..., 1955, p.
30), which it had already used in the case Land, Island and Maritime Frontier Dispute
(HCM, Vol. 2, p. 501).
525
See HCM, para. 3.53..
161 suggested as a common zone in order to avoid
incidents while the delimitation was resolved;
IV. In referring to the Jatest negotiation attempts in
Guatemala (1-2 October 1997) Honduras continues to
use an unacceptable language about Nicaragua
1
("incidents north of the 15 526allel continued to be
instigated by Nicaragua"). According to Honduras,
during those conversations her delegation proposed
an agreement for a territorial sea based on parallel 14°
59.8' N and submitting the delimitation of the
exclusive economie zone to the Court or to
arbitration, and that Nicaragua did not refer to 527
delimitations either in the Caribbean or the Pacific.
According to Dr. Alejandro Montiel Argüello, who
headed the Nicaraguan delegation to this meeting
(and to a Jater one held in Costa Rica on 6-7
November 1997 528), it was at the second meeting, on
6-7 November 1997, that the head of the Honduran
delegation made said proposai that he, as head of the
Nicaraguan delegation, declared unacceptable,
proposing instead that the Parties should submit to the
decision of International Court of Justice the
delimitation of ali the maritime spaces of the two
countries in the Caribbean Sea. The Honduran
delegate rejected this, and no further meetings of the
529
Commission were held. The fact that a proposai of
this type was made shows that Honduras was aware
of the weakness of the "tradition" of a boundary line
over "non-traditional" areas.
7.63 Honduras proposes biased conclusions on the diplomatie
530
correspondence after 1979. If, as claimed, Honduras has upheld
her position of a traditional boundary at Parallel 14° 59.8' N
510See HCM, para. 3.54.
527
See HCM, Vol. 2, Annex 98, which reproduces the testimony of Carlos Roberto Reina,
then President of Honduras, who corroborates these statements. According to Dr. Alejandro
Montiel Argüello, who headed the Nicaraguan delegation to this meeting (and to a later one
heldin Costa Rica on 6-7 November 1997, see NM, Vol. II, Annex 97), it was at the second
meeting, on 6-7 November 1997, that the head of the Honduran delegation made said
proposai that he, as headf the Nicaraguan delegation, declared unacceptable, proposing
instead that the International Court of Justice decides the delimitation of ali the maritime
spacesof the two countries in the Caribbean Sea. The Honduran delegate rejected this, and
51 further meetingsf the Commission were held. (See NR, Vol. II, Annex 1).
52xSee NM, Vol. 2, Annex 97.
530See NR, Vol. II, Annex 1.
See HCM, para. 3.53.
162 (although she mistakenly located it at 14° 59' 08" N) and her
sovereignty and jurisdiction over ali island and maritime spaces
north of said line, it can also be deduced from the correspondence -
although Honduras prefers not to mention this - that Nicaragua has
systematically and insistently rejected this claim since it was first
enunciated, and has persevered in considering as her own the cays
and maritime spaces. References by Honduras to the absence of
1
peaceful control by Nicaragua over the waters north of the 15 h
Parallel, framed in the usual derogatory language ("despite its policy
of harassment of Honduran fishing vessels" 531), ignore that
Nicaragua, without resorting to this type of language, can state the
same about Honduras. In fact, if as stated in the Honduran Counter
Memorial, "the diplomatie correspondence also demonstrates the
absence of peaceful occ1pation and 532trol by Nicaragua of the
waters north of the 15 h parallel," one can also say the same of
Honduras, which bases her claim almost exclusively on a practice
533
fabricated after the dispute arose.
7.64 Seeking signs of acquiescence, Honduras embarks upon a suspicious
story in reference to the concession made on 17 November 1986 by
the Nicaraguan Fishing Institute (INPESCA) for the fishing of
lobster in Nicaraguan waters to a group of around thirty Honduran
boats, represented by Ramon Sanchez Borba, and including -
according to clause 6 of the concession and the attached map -
waters north of the 15 Parallel. A letter from the Honduran Minister
of Foreign Affairs to his Nicaraguan counterpart, dated 20 March
1987, stated that said concession included "maritime areas under the
exclusive sovereignty of the Republic of Honduras" and went
"against the traditional maritime border existing between Honduras
and Nicaragua, established at Parallel 14° 56' 09" (sic). INPESCA
had the viltue, Honduras claims, of quickly correcting this
concession and adopting a resolution on 7 April 1987 to modify
clause 6 of the concession to read that "the fishing area for each
fishing boat shall be determined by INPESCA in areas south of
534
parallel15."
7.65 Although the facts expressed are, in any case, irrelevant to the
purposes at hand, Nicaragua is in the obligation of pointing out their
Jack of essential truth, the frivolity of the unproven statement, and
the irregularities in the story told by Honduras.
531See HCM, para. 3.55..
532
533See HCM, para. 3.55..
534See supra Chap. V.
See HCM, para. 6.50..See also para.7. 22.
1637.66 Honduras has reproduced the documents to support her version of
events in Annexes 121-124 of the Counter-Memorial. These do not
include, however, the note with which the Nicaraguan Foreign
Minister would have responded to the missive from his Honduran
counterpart, had the latter been received. No Notes exchanged in
1987 figure in the list of diplomatie Notes included in the
Nicaraguan Memorial. The Honduran Note, in addition, commits the
mistake of setting the parallel through which the traditional border
supposedly runs at a location three minutes and one second beyond
the "traditional" mistaken location adopted in the correspondence
from the Honduran Foreign Ministry. The modification, lastly, of
clause 6 of the concession appears in a certification signed not by
Luis Adrian Pichardo Chavez, who signed the INPESCA
concession, but rather by an unnamed legal adviser, who in any case
lacked the power to make such a modification.
7.67 According to Article 6 of the Organic Law of INPESCA 535 the
General Director - and Assistant Director if invested with this
responsibility - was the only person authorized to sign and modify
contracts with persons to whom Fishing Licenses were granted. 536
7.68 In a sworn statement, then General Director of INPESCA Dr.
Pichardo Chavez states that he did in fact sign the contract
mentioned in the Honduran CM and that he was the only person
authorized to modify said contract. He says that he has a clear
memory both of Mr. Sanchez Borba and of the contract signed, and
he also remembers that "during the entire time that he worked at
INPESCA (he was General Director until 1988) he never authorized
any modifications to that contract.". Dr. Pichardo Chavez adds, "in
no case were these (areas for fishing exploitation) limited to spaces
south of Parallel fifteen (15)." INPESCA, he concludes, "had several
Legal Advisors, but their responsibilities did not include the power
to sign or modify fishing concession contracts; therefore, any such
actions by any of those Advisors would have been in violation of the
Statutes of the institution and without any legal value".37
7.69 Moreover, not a single map of Honduras reflects the boundary of
maritime areas with Nicaragua in the Caribbean Sea. 538 A
"traditional" line is not necessarily an invisible Iine. lt may be
expressed very weil through illustration. The maps of Nicaragua
from 1965 and 1982 reproduced by Honduras did include a maritime
535
536See Organic Law of INPESCA in NR, Vol. 2, Annex 37.
See witness statement of then General Director Luis Adrian Pichardo Chavez, in NR,
Vol. II, Annex 38.
537See NR, Vol. II, Annex 38.
538
On the maps, see supra Chap. VI.
164 boundary between Honduras and Nicaragua in the Gulf of Fonseca,
agreed upon in 1900 (Minute noII, 24 February 1900, of the Mixed
Commission), but did not include a maritime boundary in the
Caribbean because no such boundary existed.
V. Conclusion
539
7.70 Under the title "the Conduct of the Parties" Honduras cornes back
to the effectivités from Chapter 6 of her Counter-Memorial.
Honduras confuses the concepts of custom, tacit agreement, and
effectivités. The first, to exist, must be bilateral, equivalent and
difficult to distinguish from the tacit agreement which, if it existed
and were established - a decision that cannot be taken lightly in
matters of sovereignty - would be more than a relevant
circumstance, since consent by the parties would result in a line
which could be presumed equitable. But, in the event, the line that
Honduras claims has been accepted by Nicaragua is so manifestly
inequitable if we look at it from the point of view of the relevant
circumstances and International Law, that any agreement would
have to be unequivocally proven in order to override this inequity.
The effectivitésof one side accepted by the other can be elements of
proof of an agreement, but if the agreement is not proven, then, they
could not be used as criter540for delimitation when the object is to
reach an equitable result. Honduras herself seems to be aware of
this, as she carefully avoids the term effectivités in this section,
541
although the term was persistently used in Chapter 6, and she
makes the common acceptance of the line - rather than its
effectiveness -the test of the equity of the result.42
7.71 It could be said that Honduras, ruling out the possibility that the
Court could accept a line based on a genuine tacit agreement, hopes
that her allegations relating to conduct, taken with other
circumstances, could help to work the miracle.
539See HCM, paras. 7.15-7.25.
540See supra Chap. Il.
541Indeed, the terrn etfectivités appears only once, errors and omissions excepted, in
Chapter 7 (see HCM, para. 7.2).
542See HCM, paras. 7.15-7.16. But this observation obliges to be extremely cautious
dealing with the deduction of consent from a conduct.
1657.72 Nicaragua cannot insist enough that everything that Honduras has to
1
say about Nicaragua's acceptance of the 15 h Parallel N as a
boundary must be based on facts and documents prior to 1977, when
negotiations about the delimitation were proposed. In any case, the
subsequent effectivités shou1d be rejected even if they tru1y were
effectivités, which they are not, because: 1) they cannot establish
acceptance of agreement by the other party; and, 2) without this
acceptance they are not in and of themselves relevant to an equitable
delimitation. Those dates, alone, exclude any hypothesis of
acceptance of a line over maritime areas conceived (exclusive
economie zone) or transformed (continental shelf) at a later date.
Similarly, in regard to the fishing activities and the naval patrols, it
is hard to imagine when a tacit acceptance of a line could have been
established,543ven that the patrols only began in 1976, according to
Honduras.
7.73 Honduras mixes tog544er the regime of islands with those of
maritime areas. She also plays on confusion and turns things
topsy-turvy when, while accusing Nicaragua of ignoring
545
geography, she h546elf completely exiles geography from the
delimitation process favoring the combination of circumstances -
she says -of a legal nature (uti possidetis, effectivités, acquiescence,
treaties547 territorial matters and maritime delimitation in the
region) that are not relevant to carry out a delimitation, but rather
to make one irrelevant.
7.74 Honduras definitely sets out to obscure the relevant geographical
circumstances with a screen of putative legal circumstances that, if
taken into account to determine the boundary tine in this case, would
548
lead to a manifestly inequitable decision.
543See HCM, para. 6.62.
544See supra Chap.II; infra Chap. IX.
545See HCM, para. 1.14.
546See HCM, paras. 7.1-7.3. See supra Chap. II; infra Chap. IX.
547
54 See HCM, para. 4.20.
xSee supra Chap. II.
166 CHAPTER VIII
THE APPLICABLE PRINCIPLES OF THE LAW OF THE SEA
(THE METHODS OF DELIMITATION)
8.1 The passages devoted by Honduras to the applicable law are rather
unpleasant in tone and besides the point as far as their substance is
concerned: Honduras harshly criticizes the Nicaraguan Memorial as
being "contradictory and even confused", 549 "confusing and
550 551
internally inconsistent" or "confused and inconsistent" , etc. -
but, at the end of the day, she eventually agrees on the same general
conclusions with respect to the applicable law.
8.2 Therefore, the present chapter will be limited to correcting sorne
errors of interpretation made by Honduras and to briefly reaffirm
Nicaragua's position with respect to the applicability of the 1982
Convention on the Law of the Sea (Section I) and of the legal
principles applicable to the case with special emphasis on the
methods of delimitation (Section Il), including the place and role of
equity. In her Chapter on the applicable law, Honduras also deals
with "the legal definition and treatment of islands" 552and with "the
553
Nicaraguan geomorphological argument", however, since these
developments mainly concem the implementation of the relevant
method of delimitation, they will be tackled in other parts of the
present Reply, Chapter II and IX.
1. The Applicability of The 1982 United Nations Convention On The
Law of The Sea
8.3 Honduras devotes great efforts to denouncing the "rather tortuous
554
line of argument followed in the Nicaraguan Memorial". She,
however, reaches exactly the same conclusions:
i)the 1982 Convention on the Law of the Sea is applicable in
this case; and
549HCM, Vol. 1,para. 1.20.
550HCM, Vol. 1,para. 4.1.
551HCM, Vol. 1,para. 4.10.
552HCM, Vol. 1,paras. 4.28-4.32.
553HCM, Vol. 1,paras. 4.33-4-35.
554
NM, Vol. 1, para. 4.6.
167 ii) the Convention reflects the positive customary
international law, at least as far as the Articles most
relevant in the present case (mainly Articles 15, 74 and
83) are concerned.
8.4 In trying to justify these findings, Honduras goes as far as relying
precisely on the same quote as that referred to by Nicaragua in her
Memorial, a quotation which she attributes erroneously to the
Court 55, thus reproducing a mistake made by Nicaragua at page 69
of her Memorial, at paragraph 16, where a line had been
inadvertently omitted. As the context made clear, it should read:
"many of the relevant elements of customary
law are incorporated in the provisions of the
Convention" (Arbitral Award, 17 December
1999, Eritrea/Yemen (Maritime Delimitation),
p. 39, para. 130; see also: ICJ, Judgment, 3 June
1985, Continental Shelf (Libyan Arab
Jamahiriya/Malta), ICJ Reports 1985, p. 30,
para. 27 - the inadvertently omitted references
in NM are in bold; cited in NM, p. 69, para. 16
and reproduced with the same mistake in HCM,
p. 60, para. 4.7).
In any case, on the substance, this is hardly a disputable fact and
Honduras could have found other quotes to the same effect (see e.g.:
ICJ, Judgment, 14 June 1993, Maritime Delimitation in the Area
between Green/and and Jan Mayen, p. 59, para. 47; Judgment, 16
March 2001, Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Merits), para. 167; see also, para. 175
and 201 or Arbitral Award, 17 July 1986, Filleting within the Gulf of
St. Lawrence (Canada/France), UNRIAA, Vol. XIX, pp. 256-257,
para. 51).
8.5 This being so, Nicaragua sees no point in debating with Honduras on
the correct reasoning to be followed in order to reach these
conclusions since there is no disagreement between the Parties in
this respect. She will only note en passant that Honduras herself
stresses that Nicaragua has only become a Party after having filed
her Application; therefore it might be thought that it was not
superfluous to explain why the Montego Bay Convention was,
nevertheless, applicable.
555
HCM, para. 4.7.
1688.6 In any case, both Parties agree at least on the sources of the rules to
be applied and it is then sufficient for the Court to take note of the
agreement of the Parties in this respect as it has often done in the
past (see e.g., among an extensive case-law: ICJ, 3 June 1985,
Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports
1985, p. 31, para. 29 or p. 38, para. 45; 14 June 1993, Maritime
Delimitation in the Area between Greenland and Jan Mayen, p. 59,
para. 47; Kasikili-Sedudu Island, ICJ Reports 1999, p. 1104, para.
95; 16 March 2001, Maritime Delimitation and Territorial Questions
between Qatar and Bahrain (Merits), para. 167 and 175; 10 October
2002, Land and Maritime Boundary Between Cameroon and
Nigeria, para. 286). As correctly explained in paragraph 8.4 of the
Honduran Counter-Memorial, "[w]ith the 1982 United Nations
Convention on the Law of the Sea now in force between the two
Parties, the law applicable to the case is the positive customary
international law of the sea, as reflected by the practice of States, the
relevant articles of the 1982 Convention [which, for her part,
Nicaragua would have mentioned first], and the international case
law beginning with the judgments of the International Court of
Justice"556 (Honduran Counter-Memorial, p. 148).
8.7 However, anxious to find differences between the Parties, artificial
as they may be on this point, Honduras twice accuses Nicaragua of
relying on the 1958 Convention on the Continental Shelf 557,even
though Nicaragua had very clearly acknowledged that neither Party
558
had ratified this Convention .The reason for Honduras' insistence
seems to be that Nicaragua uses (among many other arguments)
what Honduras calls a "geomorphological argument" 559• It is highly
revealing that Honduras has not been able to find a single passage in
Nicaragua's Memorial referring to the 1958 Convention in support
of the argument based on the Nicaraguan Rise and rightly so: there is
no such mention.
8.8 This being said, Nicaragua maintains what has been explained in
paragraph 4 of Chapter VI of her Memorial, that is, that the Geneva
Conventions can be of relevance for establishing the existence of a
customary rule.
8.9 As for the relevance of the Nicaraguan Rise as a relevant
circumstance for the delimitation of a single maritime boundary in
the present case, see below Chapter IX paragraphs 9.20-9.25 and
556HCM, Vol l, para. 8.4.
557See HCM,Vol. 1, para. 1.21 and para. 4.9.
558See NM, Vol. 1,para. 4.
559
See HCM, Volt, para. 1.21 and paras. 2.21-2.23, p. 61, para. 4.9 and paras. 4.33-4.35 or
para. 7.4.
169 above Chapter II paragraph 2.6 and the Nicaraguan Memorial,
paragraphs 42-45 and, paragraphs. 14-11.
II. The Legal Principles Applicable to the Case
8.10 In Chapter 4 of her Counter-Memorial, Honduras undertakes to
advice Nicaragua on how her case should have been presented.
According to the Respondent State, the Applicant should have first
put forward "the fundamental norm of customary international law
[according to whichl 'delimitation must be effected by the
application of equitable criteria and by the use of practical methods
capable of ensuring, with regard to the geographie configuration of
the area and other relevant circumstances, an equitable result' (I.C.J.,
Judgment, 12 October 1984, Delimitation of the Maritime Boundary
in the Gulf of Maine Area, ICJ Reports 1984, pp. 299-300, para.
560
112)" .According to Honduras, the way Nicaragua proceeds in her
Memorial creates a confusion since she deals jointly with the goal
and the methods of delimitation 561 and tries to introduce
surreptitiously the equidistance principle, of wh562 the bisector
method would be "nothing more than a variation".
8.11 For her part, Honduras, quoting the Court, recalls that the "statement
of an 'equitable solution' [in Articles 74, paragraph 1, and Article 83,
paragraph 1,of the UN Convention of the Law of the Sea] as the aim
of any delimitation process reflects the requirements of customary
law as regards the delimitation bot563or the continental shelf and of
the exclusive economie zone", a quotation which, indeed, also
appears in the Nicaraguan Memorial (at Chapter VI, paragraph 22).
Nonetheless, Honduras devotes herself to minimizing the place and
role of equity in maritime delimitation, which she strictly limits to
the taking into consideration of the relevant circumstances listed in
paragraph 4.20 of her Counter-Memorial:
"(1) the historie root of title in the princip le uti possidetis
juris (...;
sooHCM, Vol. 1, para. 4.1O.
561see HCM, Vol. 1, paras. 4.11-4.12.
562
503HCM, Vol. 1, para. 4.13.
ICJ, Judgment, 14 June 1993Maritime Delimitation in the Area between Green/and
and Jan Mayen, p. 50, para. 93 - cf. HCM, Vol. 1, para. 4.14.
170 "(2) the effectivitésextending over several decades and more,
on the part of Honduras in the islands and waters north of the
15th parallel (... );
"(3) Honduran sovereignty and exercise of jurisdiction over
the islands and surrounding waters north of the 15th parallel
(...);
"(4) the acquiescence on the part of Nicaragua in the exercise
of sovereignty and jurisdiction by Honduras, in the islands
and maritime spaces north of the 15thparallel; and
"(5) the treaties resolving territorial questions and maritime
564
delimitation in the region. "
8.12 lt will be apparent from this enumeration that ali these so-called
"relevant circumstances" are extraneous to the law of the sea.
8.13 Nicaragua certainly does not deny that "[a] case dealing with the law
of maritime delimitation cannot be envisaged exclusively within this
specifie branch of public international law. Quite evidently, it is also
to be settled in conformity with any other pertinent rule of
international law". 565 However, "also" does not mean "exclusively":
in order to carry out a maritime delimitation, one has to apply also -
and in the first place - the relevant rules of the law of the sea and to
take into consideration the relevant circumstances pertaining to this
branch of public international law.
8.14 lt is significant in this respect that, in its Judgment of 1985 in
Libya/Malta, the Court, first recalls that "ali the relevant
566
circumstances" must be taken into consideration, then it makes
clear what is meant by "relevant circumstances" in a passage
conspicuously ignored by Honduras, that purposefully and expressly
circumscribes her argument to what the Court said in 1969, quoted
567
in the Honduran Counter-Memorial that is that "there is no legal
limit to the considerations which States may take account of for the
purpose of making sure that they apply equitable procedures". 568
But, after having quoted this same passage, the Court in 1985 went
on to explain:
564HCM, Vol. 1,paras. 4.18-4.22 - footnotes omitted.
565HCM, Vol. 1,para. 4.23- emphasis added.
5663 June 1985, ICJ Reports 1985, para. 45- quoted with insistence in HCM, p. 64, para.
4.19.
56HCM, Vol. 1, para. 4.16.
568Judgment, 20 February 1969, North Sea Continental Shelf, ICJ Rep. 1969, p. 50, para.
93.
171 "Yet although there may be no legal limit to the considerations
which States may take into account of, this can hardly be true for a
court applying equitable procedures. For a court, although there is
assuredly no closed list of considerations, it is evident that on/y those
that are pertinent to the institutionof the continental shelf as it has
developed within the law, and to the application of equitable
principles of delimitation, will qualify for inclusion."9
Then the Court went on to explain what were the relevant
circumstances in that case: the respective length of the coasts of the
Parties and the general geographical context (cf. page 52, paragraph
73).
8.15 More recently, in the case concerning Maritime Delimitation in the
Area between Greenland and Jan Mayen, the Court asserted:
"... that special circumstances are those
circumstances which might modify the result
produced by an unqualified application of the
equidistance principle. General international
law, asit has developed through the case-law of
the Court and arbitral jurisprudence, and
through the work of the Third United Nations
Conference on the Law of the Sea, has
employed the concept of 'relevant
circumstances'. This concept can be described
as a fact necessary to be 570en into account in
the delimitation process."
The Court has quoted this very passage with approval in its recent
Judgments in the cases concerning Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Merits)
(paragraph 229) and the Land and Maritime Boundary Between
Cameroon and Nigeria (Merits) (paragraph 289).
8.16 In neither of those cases, did the Court apply any of the so-called
"relevant circumstances" as listed by Honduras (see above,
paragraph 8.1 1). And for good reasons: these elements may be
relevant factors which could, if proven, induce the Court to shift the
solution adopted in conformity with the principles of the law of the
sea, but, by no means, can they be held as "relevant circumstances"
in the usual meaning of these terms as far as maritime delimitation is
concerned. Moreover, as shown in other parts of this Reply, none of
sw ICJ Rep. 1985, p. 40, para. 48 - emphasis added.
570ICJ Rep. 1993, p. 62, para. 55 - emphasis added.
172 those so-called "relevant circumstances" are relevant in the present
case:
- the principle uti possidetis iuris is of no assistance to the
Honduran case (see Chapter IV above);
- the effectivitésare of limited relevance: the relevant period
is very limited in time and, during this limited period,
Honduras can invoke no significant act "à titre de souverain"
on the islands she daims (see Chapters V, VI and VII
above);
- Honduras has exercised no sovereignty or jurisdi1tion over
the islands and surrounding waters north of the 15 h parallel
(see Chapter VI and Chapter VII above);
- Nicaragua herself, not Honduras, has exercised jurisdiction 1
on the islands and in maritime spaces north of the 15 h
parallel (see Chapters V to VII, above); and
- the treaties invoked by Honduras do not resolve territorial
questions and maritime delimitation in the region, otherwise
this case would not be pending before the Court (see
Chapters III and IX).
8.17 lt is highly sïgnificant that, in the sections of her Counter-Memorial
where she dea1s with the applicable law, Honduras does not mention
any relevant circumstance which is pertinent to the various
institutions of the law of the sea at stake: the territorial sea, the
continental shelf or the exclusive economie zone. And even in the
other parts of her Counter-Memorial, there is hardly any mention of
any such circumstances besicles the presence of "islands" (a
circumstance which is dealt with in another Chapter of this Reply -
see Chapter IX). In particular, Honduras is mute with respect of:
- the geology and geomorphology of the area, to which Honduras
571
seems to deny any relevance in contradiction with the case-law of
the Court (see e.g.: 20 February 1969, North Sea Continental Shelf,
ICJ Rep. 1969, p. 54, para. 10l.C.(2); 24 February 1982, Continental
Shelf (Tunisia/Libyan Arab Republic), ICJ Reports 1982, pp. 57-59,
paras. 66-69 or Arbitral Award, 14 February 1985, Delimitation of
the Maritime Boundary between Guinea and Guinea Bissau, ILM
Vol. 25, 1986, pp. 298-300, paras. 112-117);
571
See e.g.: HCM, Vol. l, paras. 4.33-4.35.
173 - the access to natural resources (ICJ Reports 1969, p. 51, para. 97;
12 October 1984, Delimitation of the Maritime Boundary in the Gulf
of Maine Area, ICJ Reports 1984, pp. 343-344, paras. 238-240; 3
June 1985, Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ
Reports 1985, p. 41, para. 50; 14 June 1993, Maritime Delimitation
in the Area between Green/and and Jan Mayen, pp.71-74, paras. 75-
80 or 16 March 2001, Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, para. 236);
- the general configuration of the coasts of the Parties (ICJ Reports
1969, p. 54, para. 101.0 (2); Arbitral Award 1985, ILM, Vol. 25,
1986, pp. 293-296, paras. 100-104) and their possible change of
direction (ICJ Reports 1982, p. 63, para. 78, p. 87, para. 124 and p.
93, para. 133.B (2); 10 October 2002, Land and Maritime Boundary
Between Cameroon and Nigeria (Merits), para. 297);
- the respective length of the relevant coasts of the Parties (ICJ
Reports 1969, p. 54, para. 101.0 (3); Arbitral Award, 30 June 1977,
United Kingdom-France Continental Shelf, RIAA, Vol. XVIII, p.
253; ICJ Reports 1982, p. 91, para. 131 and p. 93, para. 133.B (5);
ICJ Reports 1984, pp. 322-323, paras. 184-185 or pp. 334-335, para.
218; ICJ Reports 1985, pp. 44-45, para. 57-58 or pp. 49-50, para. 67;
ICJ Rep. 1993, pp. 67-69, para. 65-69; Qatar/Bahrain, para. 241-
243; Arbitral Award, 17 Oecember 1999, Eritrea/Yemen (Maritime
Delimitation), p. 47, para. 165; Cameroon/Nigeria, para. 301); and
-"the land boundary between the Parties" (ICJ Reports 1982, p. 66,
para. 85or p. 93, para. 133.B (4)).
Ali these circumstances are relevant and have a role to play in the
delimitation and cannot be ignored as Honduras very consistently
does. Nicaragua will come back on their respective (and unequal)
rolein the present case in Chapter IX of this Reply.
8.18 Once again, Nicaragua does not deny that other rules may interfere
with the application of the law of the sea but submits that, as the
Court explained in its Judgment of 1985 (see above, paragraph 8.15),
the "relevant circumstances" to be taken into consideration for the
purpose of maritime delimitation must be pertinent to the different
maritime areas which are to be delimited.
8.19 In this respect, Honduras is wrong in reproaching Nicaragua for
making a distinction between the delimitation of the territorial sea
and that of the maritime areas situated beyond its outer limit. The
United Nations Convention on the Law of the Sea, which is the main
source of applicable rules in the present case, provides for slightly
different methods of delimitation for both sectors, as Nicaragua
174 recalled in her Memorial by reproducing Art572e 15 on the one band
and Articles 74 and 83 on the other hand. As far as the territorial
sea is concerned, Article 15 requires the application of the principle
"equidistance/special circumstances". For their part, Articles 74 and
83 relate to the delimitation respectively of the exclusive economie
zone and the continental shelf and limit themselves to impose on the
concerned States "to achieve an equitable solution".
8.20 However, the methods of delimitation of the three zones have largely
come together. This trend justifies the Nicaraguan request for a
single line and enables the Court to answer this request and to apply
the same principles both to the delimitation of the territorial sea on
the one hand and the continental shelf and exclusive economie zone
on the other hand.
8.21 As the Court recalled in Qatar/Bahrain:
"... the concept of a single maritime boundary
does not stem from multilateral treaty law but
from State practice, and (... ) it finds its
explanation in the wish of States to establish
one uninterrupted boundary tine delimiting the
various - partially coïncident - zones of
maritime jurisdiction appertaining to them. In
the case of coïncident jurisdictional zones, the
determination of a single boundary for the
different objects of delimitation."
" ... can only be carried out by the application of
a criterion, or combination of criteria, which
does not give preferential treatment to one of
these ... objects to the detriment of the other,
and at the same time is such as to be equally
suitable to the divisionf either of them",
As was stated by the Chamber of the Court in the Gulf of Maine case
(I.C.J. Reports 1984, p. 327, para. 194). In that case, the Chamber
was asked to draw a single tine which would delimit both the
continental shelf and the superjacent water column.
"Delimitation of territorial seas does not present
comparable problems, since the rights of the
coastal State in the area concerned are not
functional but territorial, and entait sovereignty
over the sea-bed and the superjacent waters and
572
NM, Vol. 1,Chap. VI, para. 18.
175 air column. Therefore, when carrying out that
part of its task, the Court has to apply first and
foremost the principles and rules of
international customary law which refer to the
delimitation of the territorial sea, while taking
into account that its ultimate task is to draw a
single maritime boundary that serves other
573
purposes as well".
8.21 However, as shown in Nicaragua's Memorial, 574 both principles
have progressively converged:
- the delimitation of the territorial sea must achieve an equitable
result as weil (and this is why the consideration of the "special
circumstances" is called upon to correct the strict application of the
equidistance principle); and;
- for delimiting the continental shelf and the exclusive economie
zone, the required equitable solution will usually be reached by first
drawing an equidistance line and, then, correcting it in consideration
of the relevant circumstances.
8.23 As the Court noted, again in its Judgment of 2001 in Qatar/Bahrain,
"... the equidistance/special circumstances rule,
which is applicable in particular to the
delimitation of the territorial sea, and the
equitable principles/relevant circumstances
rule, as it has been developed since 1958 in
case-law and State practice with regard to the
delimitation of the continental shelf and the
exclusive economie zone, are closely
575
interrelated" .
8.24 As the Court also recalled, it is:
"... in accord with precedents to begin with the
median tine as a provisionalline and then to ask
whether 'special circumstances' require any
adjustment or shifting of that line". 576
573
574ICJ, Judgment. 16 March 2001, paras. 173-174.
575NM, Vol. 1,Chap. VI, paras. 19-25.
Judgment of 2001 in Qatar!Bahra, at para. 231. See aIso 10October 2002, Land and
Maritime Boundary Between Cameroon and Nigeria, para. 288.
576Judgment, 14 June 1993, Maritime Delimitation in the Area between Green/and and Jan
Mayen, p. 61, para. 51, this passage is also quoted in the Judgment of 16 March 2001,
176 This is the method applied by the Court in cases where the coasts of
the Parties were opposite (in Jan Mayen for example - see ICJ
Reports 1993, p. 62, para. 53; see also ICJ Reports 1985, p. 47, para.
63) as weil as in cases where the coasts were adjacent (in
Qatar/Bahrain - see para. 230 et seq. or in Cameroon!Nigeria, para.
290 et seq.; see also ICJ Reports 1984, p. 335, para. 218).
8.25 Therefore, Nicaragua submits that it is appropriate in the present
case to apply the same method - that is to draw an approximate
median line and to test it against the special/relevant circumstances
of the region in order to ascertain that it achieves an equitable
solution. This is ali the more appropriate in that the Parties agree to
draw a single line of delimitation between their maritime areas; the
above method is "best suited for use in such a multi-purpose
delimitation".577
8.26 However, the method can only be transposed mutatis mutandis in the
present case. In effect, as shown in Chapter X of the Nicaraguan
Memorial (at paragraph 25) the particular geographical features of
the coast imply that the basepoints would be located on a very
narrow space on each side of the River Coco; moreover, it would
push the delimitation line further north than the direction generated
by the generalized use of the bisector method, a situation that could
be seen as inequitable for Honduras.
8.27 These principles and the resulting method are applied in the next
chapter of the present Reply.
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits),
para. 227, and in that of lü October 2002, Land and Maritime Delimitation Between
Cameroon and Nigeria,para. 289.
577Cf. ICJ, Chamber, Judgment, 12 October 1984, Delimitation of the Maritime Boundary
in theGulf of Maine Area, ICJ Rep. 1984, p. 327, para. 194 or 10 October 2002, Land and
Maritime Boundary Between Cameroon and Nigeria,para. 287.
177 CHAPTERIX
THE COURSE OF THE BOUNDARY
1. The Purpose
9.1 The purpose of the present chapter is to reaffirm the position of
Nicaragua on the course of the maritime boundary. In the course of
doing so, the Government of Nicaragua will respond to the relevant
sections of the Honduran Counter-Memorial.
9.2 The ancillary question of the relationship between the delimitation of
the single maritime boundary and the equitable solution to be
applied within the territorial sea bas been examined sufficiently in
the previous chapter, paragraphs 8.19 - 8.22. The related topic, the
identification of the point of departure of the single maritime
boundary, is examined below in Chapter X.
II. The Delimitation on the Basis of a Single Maritime Boundary
9.3 As the Comt will have observed, both parties have requested a
delimitation in the form of a single maritime boundary. The legal
underpinnings of the single maritime boundary are described in the
Nicaraguan Memorial, pages 87-95, paragraphs 1-9, and the Court is
respectfully referred to the Memorial.
9.4 In the Counter-Memorial Honduras does not offer any criticisms of
the views expressed in the Nicaraguan Memorial on this aspect of
the methodology. Indeed, Honduras accepts the principle of a single
maritime boundary. In the words of the Counter-Memorial:
"Honduras agrees that the Court should
determine the location of a single maritime
boundary and that it should do so " in
accordance with equitable principles and
relevant circumstances 578ognised by the
general international law."
578
HCM,Vol. 1,p. 1, para 1.2.
1799.5 Reference to a single manttme boundary also occurs at page 2,
paragraph 1.5, and at page 145 (the heading). White the Honduran
Government clearly recognizes the concept of the single maritime
boundary, it may be noted that in substance, the claim line adopted
by Honduras is not a maritime boundary, single or otherwise, but the
so-called 'traditional boundary along the 151hparallel', based upon
the alleged 'conduct of the parties', and based upon the alleged
exercise of sovereignty by Honduras: see Chapter 6 of the Counter
Memorial, passim.
III. The Bisector Method of Delimitation
9.6 The justification of the use of the bisector method has been set forth
at length in the Memorial, pages 95-122, paragraphs 20-83, and the
Court is respectfully referred thereto.
9.7 In response to the careful exploration of the positton in the
Nicaraguan Memorial, Honduras has little or nothing to say about
the status and the value of the bisector method. The only Honduran
comment of substance involves pointing out that the bisector method
is closely related to equidistance, which is accepted in the Memorial:
see the Honduran Counter-Memorial, pages 6-7, paragraph 1.20, and
pages 62-63, paragraph 4.14. The relationship between equidistance
and the bisector method is examined in the Nicaraguan Memorial,
pages 136-8, paragraphs 26-30. The Government of Nicaragua
affirms the position adopted therein, together with the conclusion:
"In the present context the Government of
Nicaragua has the objective of emphasising that
the result of using the bisector method is
compatible with the result of using the
equidistance method in the geographical
circumstances of the present case, in which the
use of the bisector method is made necessary
for two reasons. First, it avoids entanglement
with the problematical aspects of the terminus
of the land boundary and, secondly, it avoids
giving undue influence to very minor and
aberrant coastalfeatures."
9.8 In spite of the close relationship of the bisector method to the
equidistance method, Honduras complains that the bisector
employed by Nicaragua 'bears no relation to the actual configuration
180 of the coastline': see the Counter-Memorial, page 149, paragraph
8.11. But this criticism is not elaborated in any way.
9.9 In the Memorial Nicaragua explains that the bisector method treats
the islets and rocks off the mainland coasts in accordance with the
criteriaof equity: see pages 138-144, paragraphs 31-43. The
Government of Nicaragua now affirms this analysis.
9.10 Honduras objects to the weight the single maritime boundary
presented in the Memorial of Nicaragua accords to the islets and
rocks in the area of relevance for the delimitation. There are two
aspects to this Honduran contention. One is that Honduras considers
that she has a title over certain islets located between the single
maritime boundary proposed by Nicaragua and the parallel of 15°N.
The other is that, 'when speaking of "islets and rocks", Nicaragua
tries to establish a calculated legal disqualification of true islands'.:
Counter-Memorial, I, paragraph 4.29.
9.11 The first of these aspects has already been dealt with in Chapter VI
of this Reply. The analysis in that chapter points out that Honduras
has not submitted any evidence that she has a better title over the
islets locatecl between the single maritime boundary proposed by
Nicaragua and the 15° parallel. There are a number of
considerations pointing to the existence of the title of Nicaragua.
Nicaragua respectfully submits that the delimitation to be effected by
the Court should respect these conclusions on sovereignty.
9.12 The only remaining question is whether the treatment of islets and
rocks in the maritime delimitation proposed by Nicaragua is in
accordance with the law of maritime delimitation.
9.13 Honduras makes much of the fact that Nicaragua refers to 'islets and
rocks' in discussing the insular features located between the single
maritime boundary proposed by Nicaragua and the 15° N parallel.
Honduras even wonders if it is the intention of Nicaragua to depart
from the definition of islands contained in article 121 of the United
Nations: see the Counter-Memorial, I, paragraph 4.30.
9.14 As was argued in Chapter VI, the reference to 'islets and rocks'
reflects the normal terminology used to refer to minor insular
features. There can be no doubt that the islets in dispute are such
minor insular features. The use of this terminology by Nicaragua
579
has been frequently adopted in the case law. The terminology
579
See e.g. North Sea Continental Shelf cases referring to 'the presence of islets, rocks
and minor coastal projections (I.C.J. Reports,l969 p.36, para. 57); Gulf'of Maine case
referring to 'tiny islands, uninhabited rocks or low tide elevations (ibid 1984,
181 adopted by Nicaragua is intended to give an accurate idea of the
significance of these features both in general and in relation to the
mainland coasts of Nicaragua and Honduras.
9.15 Nicaragua can reassure Honduras that she does not have the
intention to depart from the definition of islands contained in article
121 of the United Nations Convention on the Law of the Sea. This
should be abundantly clear from the fact that the reference employed
by Nicaragua is not only limited to 'rocks' but also includes 'islets'.
More importantly, the weight to be accorded to these islets and rocks
is discussed by Nicaragua in the context of the delimitation. What
has to be considered is not the entitlement of these features to
maritime zones, but whether their treatment in the establishment of a
maritime boundary is equitable, taking into account the relevant
circumstances of the case. In any case it has been accepted by the
parties that they will not be taken into consideration.
IV. Relevant Circumstances: Equitable Criteria Confirming the
Equitable Result Produced by the Bisector Method
9.16 The analysis of this material presented in the Memorial is affirmed:
see the Memorial, pages 123-136, paragraphs 1-25. Honduras does
not seek to challenge the general significance of relevant
circumstances. However, it is necessary to examine the specifie
positions adopted in the Honduran Counter-Memorial one by one.
A. THE INCIDENCE OF NATIONAL RESOURCES
9.17 This type of relevant circumstance, as described in the Nicaraguan
Memorial (pages 123-127), is not the subject of comment in the
Counter-Memorial.
B. THE INCIDENCE OF FISHER lES AND HYDROCARBONS IN THE DISPUTED AREA
9.18 This form of relevant circumstance is described in the Nicaraguan
Memorial (page 127). The Counter-Memorial offers no comment
whatsoever.
para. 201)1Guinea!Guinea Bissau Arbitration referring to 'les ilots éparpillésplus au
sud' (R.G.D.l.P. 1985, p.523, para. 95); and Libya!Malta Continental Shelf case
referring to the 'isletlfla' (l.C.J. Reports 1985, p.46, para. 64).
182 C. THEPRINCIPLE OF EQUITABLE ACCESS TO THE NATURAL RESOURCES OF THE DISPUTED
AREA
9.19 This type of relevant circumstance is invoked in the Memorial
(pages 128-30) but Honduras responds with silence.
D.THE GEOLOGY AND GEOMORPHOLOGY OF THE NICARAGUAN RISE
9.20 The Memorial (pages 131-33) includes a carefully expressed
argument leading to the following conclusion:
"The Nicaraguan Rise, as reflected in its
geomorphological alignment, can be considered
to constitute such a boundary zone. As such, its
alignment does not mandate a boundary but it
does confirm the equitable nature of the course
of the boundary arrived at on the basis of other
considerations. This boundary proposed by
Nicaragua respects the unitary character of the
Nicaraguan Rise, by dividing the Rise in
approximately equal halves between Nicaragua
and Honduras. In view of the general equality
of the coastal fronts of Nicaraguan and
Honduras facing the submerged parts of the
Nicaraguan Rise, such an equal division is
inherently equitable (see also I.C.J. Reports
1969, p.50, para. 91)."80
9.21 The Honduran Counter-Memorial describes the Nicaraguan
argument as 'purely geomorphological': paragraphs 4.33-4.34. This
is not the case, as the passage quoted above makes clear. In severa]
passages in the pleading, Honduras characterizes the argument as
legally unfounded as a consequence of the Libya/Malta case: see the
Counter-Mernorial, paragraph 2.33, 4.34; and 7.3-7.4. However, the
Counter-Mernorial avoids addressing the Nicaraguan argument as it
is actually formulated.
9.22 In addition, the Honduran pleading relies exclusively on the judicial
response in the Libya/Malta case, in which both the geological data
and the Libyan arguments were of a wholly different character. In
that case Libya was advancing an ambitious argument according to
which the 'Rift Zone' south of Malta constituted a geological, and
therefore, a legal, boundary. Libya was arguing for a geological
divisionof the sea-bed as between the cases of opposite States.
580
See NM, Vo. I, para 21.
1839.23 In the present proceedings Nicaragua is simply painting to the
relevance of the geomorphology in a situation in which there is an
absence of natural dividing !ines. As Nicaragua has expressed the
matter:
"Itis recognised by Nicaragua that this Court
has rejected the view that geologie or
geomorphologie discontinuities of the seabed
can be used to establish the location of
maritime boundaries within the 200 nautical
mile limit. However, the present argument of
Nicaragua is basically different, namely that the
Nicaraguan Rise is one single feature shared by
Nicaragua and Honduras, which is
characterised by the absence of any natural
dividing lines."581
9.24 In the present context Nicaragua is not proposing a boundary based
upon geology. Moreover, the general geographical situation in the
present proceedings is fundamentally different to that in the
Libya/Malta case. Honduras and Nicaragua are adjacent States in a
highly specialized geographical and political context resulting from
the location of the land boundary in relation to the coast.
9.25 It must be noted that on severa! occasions Honduras asse1ts that the
geomorphological 'authenticity' of the Nicaraguan Rise is 'dubious':
see the Counter-Memorial, paragraphs 2.22, 8.3. These passages
make no attempt to justify this assessment. Of course, the
authenticity of the Nicaraguan Rise as a geomorphological feature
can be ascertained by reference to the standard bathymetrie charts:
see UKHO Chart 1218, published by the Hydrographer of the Navy,
Taunton, 1987. The feature in question is clearly labeled on this
chart. See also the Memorial, Figure A.
E. SECURITY CONSIDERATIONS
9.26 The Memorial (pages 134-136) also invokes security considerations
as a relevant circumstance which has received a high level of
recognition in the jurisprudence of international tribunals.
9.27 Honduras accepts that security has been recognized by the Court as a
relevant circumstance: Counter-Memorial, paragraph 7.5. Honduras
contends that there is no threat to security in fact: ibid. However,
sxJNM, Vol. 1,para 17.
184 her reliance upon the parallel of latitude conspicuously involves an
encroachment upon the coastal front of Nicaragua. In the Libya
Malta case the Court acknowledged that nearness to the coast
constituted a factor pertinent to considerations of security. In the
words of the Court:
"Malta contends that the "equitable
consideration" of security and defence interests
confirms the equidistance method of
delimitation, which give each party a
comparable lateral control from its coasts.
Security considerations are of course not
unrelated to the concept of the continental
shelf. They were referred to when this legal
concept first emerged, particularly in the
Truman Proclamation. However, in the present
case neither Party has raised the question
whether the law at present attributes to the
coastal State particular competences in the
military field over its continental shelf,
including competence over the placing of
military deviees. In any event, the delimitation
which will result from the application of the
present Judgment is, as will be seen below, not
so near to the coast of either Party as to make
questions of security a particular consideration
in the present case". (emphasis added) 582
F. THECONDUCT OF THE PARTIES
9.28 Honduras advances the conduct of the parties as a relevant
circumstance: see the Counter-Memorial, paragraphs 7.15-7.25.
Although conduct is sometimes regarded as a relevant circumstance,
the position in this case is that the Honduran argument is based
exclusively upon the conduct of the parties as a form of
acquiescence (on the part of Nicaragua) or a tacit consent. This
issue is discussed in Chapter VII of this Reply.
9.29 In the circumstances, the alleged conduct would provide an
autonomous legal basis for the 15 parallel claim line, and not a
relevant circumstance affirming a delimitation based upon equitable
principles. Neither acquiescence nor tacit consent constitute relevant
circumstances properly so-called.
582
I.C.J. Reports, 1985, p.42, para 51.
185 G. ÜIL AND GAS CONCESSIONS
9.30 Honduras invokes ail and gas concessions as an aspect of the
conduct of the parties: see the Counter-Memorial, paragraphs 7.18-
7.19. This evidence is examined in Chapters V, VI and VII of this
Reply. On the issue of princip le, it is clear that the Nicaraguan
concessions do not constitute evidence of acquiescence or consent
because they expressly reserve the question of delimitation: see
Chapters V paragraphs 5.13-5.27 and VII, paragraph 7.23. The key
element is the general evidential picture and the indication provided
by the concessions as to the understanding of the parties. As the
Court stated in the Judgment in the Cameroon v. Nigeria case:
"Overall, it follows from the jurisprudence that,
although the existence of an express or tacit
agreement between the parties on the sitting of
their respective oil concessions may indicate a
consensus on the maritime areas to which they
are entitled, oil concessions and oil wells are
not in themselves to be considered as relevant
circumstances justifying the adjustment or
shifting of the provisional delimitation line.
Only if they are based on express or tacit
agreement between the parties may they be
taken into account. In the present case there is
no agreement between the Parties regarding oil
concessions.
The Court is therefore of the opinion that the oil
practice of the Parties is not a factor to be taken
into account in the maritime delimitation in the
present case."583
9.31 The passages relating to oil concessions in the Award of the Arbitral
Tribunal in the arbitration between Eritrea and Yemen (Second
Phase) (17 December 1999) reflect the findings on sovereignty in the
first phase and other circumstances specifie to the proceedings: see
the Award, paragraphs 75 to 86. In the result the Tribunal gave only
limited effect to the oil concession evidence in the second phase.
5 3
x Cameroon v. Nigeria case, Judgment of 10October 2002, para 304.
186 H.FISHING ACTIVITIES
9.32 Fishing activities are also invoked by Honduras as an aspect of the
conduct of the parties: see the Counter-Memorial, paragraphs 7.20-
7.22. This evidence is examined in Chapter V, paragraphs 5.28-5.39
and Chapter VI, paragraphs 6.42-6.61 and 6.106-6.112 and Chapter
VII, paragraphs 64-68 in this Reply.
1NA VAL AND AERIAL PA TROLS
9.33 Honduras invokes naval and aerial patrols as evidence of the conduct
of the parties, which is itself offered as a relevant circumstance: see
the Counter··Memorial, paragraphs 7.23-7.25. The evidence is
examined in the present Reply: see Chapter V, paragraphs 5.40-5.49
and Chapter VI, paragraphs 6.64-6.66.
9.34 For present purposes it is necessary to emphasize that activities such
as naval patrolling are equivocal in purpose and thus cannot provide
evidence either of conduct of the parties or entitlement to maritime
areas. Such activities have only an ambiguous relation to the legal
interest of a coastal State in the continental shelf or exclusive
economie zone.
V. The Ambiguous Position of Honduras in Relation to the Equitable
Principles and Geographical Configuration
9.35 The Honduran Counter-Memorial bas not presented an alternative
claim line, and thus relies exclusively on the claim line based on the
151hparallel. Honduras is obviously entitled to design ber pleading
as she sees fit. There is, however, a major anomaly in the Counter
Memorial constituted by the intermittent appearance of references to
geography, to equitable principles, and to relevant circumstances.
Given the principal focus on conduct of the parties, and the absence
of any claim line related to coastal geography, these references to
geography and equitable principles remain in the pleading as ghosts
of an equitable claim line which Honduras cannot deploy in practice.
9.36 The ghosts of an equitable claim appear as follows in the Counter
Memorial:
187 A. THE REFERENCE TO EQUITABLE PRINCIPLES IN THE INTRODUCTION TO CHAPTER7
9.37 Chapter 7 of the Counter-Memorial opens with the following two
passages:
"7.1 The Court has always made it clear that
the determination of an equitable result requires
account to be taken of ali relevant
circumstances or factors. It is the complex task
of identifying, weighing, and then balancing ali
the relevant circumstances that often proves so
difficult, for these factors vary in weight and
sorne may even prove to have little relevance.
But ali must be taken into account."
"7.2 The Nicaraguan Memorial has chosen to
ignore this precept. It has taken account of the
geographical configuration of the two coasts -
which is certainly one relevant factor - and
ignored many others: the long-established, 1
traditional maritime frontier along the 15 h
parallel, the existence of Honduran islands and
Honduran effectivités just to the north of this
parallel, the delimitations already made in the
area under the 1928 Nicaragua/Colombia
Treaty and the 1986 Colombia/Honduras
Treaty."
9.38 These two paragraphs propose the application of the standard set of
equitable principles and relevant circumstances. Indeed, the first
sentence of paragraph 7.1 makes a citation to the following passage
in the Judgment in the Libya/Malta Judgment:
"Judicial decisions are at one - and the Parties
themselves agree - in holding that delimitation
of a continental shelf boundary must be effected
by the application of equitable principles in ali
the relevant circumstances in order to achieve
584
an equitable result.';
9.39 But the reader of the Counter-Memorial will not find any effective
application of these equitable principles. Moreover, paragraph 7.2,
quoted above, has no relation to the equitable principles. It is true
that, exceptionally in this pleading, there is a reference to 'the
geographical configuration of the two coasts', which is accepted as
54
~Malta!Libya, I.C.J. Reports 1985, p.38, para 45.
188 being 'certainly one relevant factor'. But there is no further
reference to this 'relevant factor' in Chapter 7 and the Honduran
claim line does not take this 'relevant factor' into consideration at
ali. Instead, the emphasis is upon the cond1ct of the parties and the
'traditional maritime frontier along the 15 hparallel' (see paragraph
7.2).
B.THE SUPERFICIAL INVOCATION OF RELEVANT CIRCUMSTANCES
9.40 Both in paragraph 7.1 of Chapter 7 and in Section III of the Chapter
(paragraphs 7.15- 7.25) Honduras invokes the category of relevant
circumstances. However, the treatment is superficial, to say the
least, and much of the substance is related to alleged evidence of the
conduct of the parties. As in other parts of the Counter-Memorial,
there is a major confusion between effectivités and the relevant
circumstances.
C. THE REFERENCE TO EQUITABLE PRINCIPLES IN PARAGRAPH7.29-7.30
9.41 In paragraphs 7.29 and 7.30 of Chapter 7 there is a further
appearance of reference to equitable principles and citations of the
North Sea cases, the Guinea/Guinea Bissau arbitration and the
Tunisia/Libya case.
D. THEREFERENCE TO EQUITABLE PRINCIPLES IN CHAPTE8
9.42 Finally, in Chapter 8 there is a further ghostly appearance in the
following passage:
"With the 1982 United Nations Convention on
of the Sea now in force between the
the Law
two Parties, the law applicable to the case is the
positive customary international law of the sea,
as reflected by the practice of States, the
relevant articles of the 1982 Convention, and
the international case law, beginning with the
judgments of the International Court of Justice.
Accordingly, the achievement of an equitable
solution constitutes the aim of the delimitation,
taking into account ali relevant circumstances
characterizing the relevant maritime area. Any
reference to equity in maritime delimitation
189 cannot run against those circumstances of a
legal nature which are pertinent to the case."
(paragraph 8.4)
9.43 This declaration appears near the end of the pleading and, like the
other references to equitable principles, is a promise with no
fulfillment. It is in any case flawed by the mysterious proviso
contained in the final sentence, and contradicted by the following
paragraph (paragraph 8.5), which declares:
"The law applicable to the case includes the
principle of uti possidetis juris of 1821 and the
Honduran effectivités since that date, in
particular during the 20 h century and
continuing up to the present time. The well
estab1ished principle of uti possidetis is the
basis of initial Honduran title to the territorial
sea and the islands, which, in their turn, have a
substantial effect upon the delimitation of the
continental shelf and the EEZ. Further, the
principle of uti possidetis juris gives rise to a
presomption of Honduran title to the
continental shelf and EEZ north of the 15 h
parallel (14°59.8'). In each case, and
independently of the applicability of the
principle of uti possidetis juris, Honduras
effectivitéssince independence in 1821 confirm
Honduran sovereignty north of the 15 h
parallel".
9.44 Like much of the Honduran argument, this passage confuses a claim
to territorial sovereignty (based on effectivités)with the issue of
maritime delimitation (based on equitable principles and relevant
circumstances). These two passages in sequence encapsulate the
contradiction between the pseudo-reliance by Honduras upon
equitable principles and the real claim based upon the 15 1h parallel,
tacit consent and effectivités.
VI. The Effects of other Delimitations in the Same Region
9.45 The Counter-Memorial refers to other delimitations in the same
region for two purposes. The exposition is far from adequate but the
first purpose is to insist on the 'importance' and 'relevance' of
190 delimitation treaties in the region: see the Counter-Memorial,
paragraphs 2 ..13-20; 7.29-7.37; and 8.10.
9.46 The Counter-Memorial seeks to explain the relevance of these
treaties on two bases. The first basisis as follows:
"Honduras submits that these bilateral treaties
are relevant for at least two reasons. First,
because the Court is entitled to presume that the
provisions of these treaties - individually and,
ali the more so, collectively - are reasonable.
This is an approach taken by the Court in
relation to maritime and land delimitations,
notwithstanding the differences in the
applicable legal regime. Second, these treaties
make use of parallels of latitude and meridians
of longitude in drawing the delimitation tine, an
approach which is widely relied upon in the
Caribbean region and elsewhere". (footnotes
omitted)(Counter-Memorial, paragraph 2.20)
9.47 The two reasons referred to are in fact linked. This passage manages
to leave the issue of relevance in obscurity. No argument is
formulated in relation to a regional custom. Mor1over, given the
specificity of the argument concerning the 15 h parallel as the
traditional boundary, based upon the conduct of the parties in this
case, it is difficult to see how the practice of other States in the
region could be legally relevant.
9.48 In any event the citations employed to support the propositions in the
paragraph quoted above provide no support whatsoever to these
propositions, but deal with other subjects.
9.49 The second basis which Honduras uses to explain the relevance of
other maritime delimitations in the region is as follows:
"7.29 Over many years the Courts have made
clear the relevance of maritime delimitation
agreements with, or between, neighbouring
States. In the North Sea Cases this Court
stressed that an equitable delimitation required
account to be taken "[...]of the effects, actual
or prospective, of any other continental shelf
delimitation between adjacent States in the
same region".
....]
191 "The rationale for this approach is clear. Such
delimitations, whether with or between third
States, can weil limit or circumscribe the
maritime area relevant to the dispute between
the Parties. Moreover, the test of
proportionality (if and when applied) requires
account to be taken of third State interests, for
the area to be attached to a Party must end
where the area attached to a third State begins.
The relevance of these third State delimitations
will be especially acute in a semi-enclosed sea,
like the sea in this case, where the whole
maritime area has to be shared by severa)
States."(Counter-Memorial, paragraphs 7.29-
7.30).
9.50 These passages are ambiguous and it is not clear whether the concept
of 'circumscribing' used by Honduras is an appropriate description
of the issue to which the Court is referring in the North Sea cases.
The legal principles to which Honduras appears to be pointing are
not in reality related to the merits of maritime delimitation but to
other questions. Weil provides a neat summary of the regime when
he observes:
"Taking account of delimitations affecting third
States thus covers two concepts and two
approaches which should be carefully
distinguished. On the one hand, it may lead the
court to limit its decision so as not to encroach
on future delimitations affecting States not
party to the case. On the other hand, it may
lead the court to extend its investigation to
geographical facts falling outside the dispute
before it. In the first case,t is the extent of the
judicial function which is at issue. In the
second, it is the determination of the relevant
coat and the area of delimitation. In neither
case is the purpose oftaking other delimitations
into account to test the equidistance line. In
short, therefore, it is not a relevant
circumstance in the proper meaning of the
term."585
5~See Weil, The Law of Maritime Delimitation- Reflections, Cambridge, 1989, p.256.
1929.51 This analysis reflects the jurisprudence (especially the Tunisia/Libya
and Malta/Libya Judgments) and is respectfully recommended to the
Court.
9.52 In conclusion, two points are worthy of emphasis. First, the
presentation based upon the alleged conduct of the parties and so
called long-established, traditional maritime frontier along the 151h
parallel' (Counter-Memorial, paragraph 7.2) cannot be assisted by
reference to the three Colombian delimitations: see Chapter III,
paragraphs 3.22-3.35 above. Secondly, the other delimitations do
not constitute a relevant circumstance properly so-called, and are not
related to the merits of the claim line in question.
VII. The Criterion or Factor of Proportionality
9.53 The bisector method satisfies the criterion of proportionality in the
geographical circumstances of the present case. Honduras has made
no attempt to fault the bisector method or the delimitation proposed
by Nicaragua beyond the territorial sea by reference to
proportionality. The subject is ignored in the Counter-Memorial and
the key chapter on delimitation (Chapter 7) contains only a passing
reference in the context of the position in relation to third States: see
at paragraph 7.30.
9.54 It is curious that Honduras also refers to the test of proportionality in
connection with the interests of third States. Nicaragua has no
problem in admitting that a test of proportionality (if and when
applied) cannot take into account maritime areas of third States. If
this finding is applied to the Honduran position, it is
incomprehensible how Honduras can maintain that the delimitation
line she proposes in the present proceedings leads to an equitable
result. No exact calculations have to be carried out to establish that
this is a glaring disproportion between the maritime spaces that
Honduras attributes to herself and those she considers to be
Nicaraguan, bounded by the parallel of l5°N. (See Figure 1)At the
same time, the coasts of Nicaragua and Honduras facing the area of
relevance for the delimitation are equal in length: see the Memorial,
Chapter Il, paragraphs 6-7.
193 VIII. Conclusion
9.55 The Counter-Memorial has three over-arching features. First of ali,
the Honduran claim is not based upon principles of maritime
delimitation but upon a so-called 'traditional boundary line', the !5th
parallel, allegedly founded upon consent and the state activities
asserted to be involved as effectivités.Secondly, the claim line
employed involves a substantial breach of the principles of non
encroachment and eut-off, and the result is therefore grossly
inequitable in terms of the law of maritime delimitation. Thirdly,
there is no alternative claim presented by Honduras based upon the
law of maritime delimitation.
9.56 These characteristics of the Counter-Memorial have a joint product:
the absence of any substantial examination of the geography of the
region and the pertinent equitable principles. The geography is
referred to exclusively in terms of the presence of certain islands and
fishing banks; see the Counter-Memorial, paragraphs 2.1-2.12 and
7.2, 7.26-7.28, 8.2, and 8.6. Jt is a striking fact that in these passages
the focus is upon the islands and fishing banks and not upon the
coasts of the mainlands of Honduras and Nicaragua.
9.57 In the context of this somewhat confused pleading, it is not
surprising to find that Honduras has major difficulties in finding a
legal role for relevant circumstances. The first difficulty consists of
the logical incompatibility of the claim line based on the 15th
parallel, which is not even prima facie equitable, with the operation
of relevant circumstances as confirmatory of the equitable result.
Looked at in another way, if (which is not admitted) consent is the
basis of a claim line, relevant circumstances become superfluous.
Conversely, the !5th parallel cannot function as a relevant
circumstance available to confirm a claim line based upon equitable
principles, simply because there is no Honduran claim line based
upon such principles.
9.58 The role of relevant circumstances is essentially to confirm the
equitable character of a line which reflects the geographical
situation. The Honduran line has no relation to the geographical
situation.
9.59 In conclusion, the Government of Nicaragua confirms the
submissions presented in the Memorial relating to the course of the
delimitation beyond the territorial sea.
194 CHAPTERX
THE POINT OF DEPARTURE AND THE TERMINUS OF THE
MARITIME BOUNDARY
10.1 In the previous chapter of this Reply, Nicaragua has described the
course of the maritime boundary and explained the legal basis for the
line separating the maritime areas appertaining respectively to
Nicaragua and to Honduras. However, the question of the end points
of the line has been left aside. The purpose of the present chapter is
to fill up this lacuna in respect of both the starting point of the
maritime boundary from the mainland (or, more accurately, from the
mouth of the Coco River) (Section I) and the terminus at sea
(Section Il).
1.The Point of Departure of The Maritime Boundary
A.REITERATION OF THE NICARAGUAN POSITION
10.2 In her Memorial, Nicaragua explained that three basic instruments
determine the terminus of the land boundary in the Caribbean coast:
-the 1906 Arbitral Award of the King of Spain;
-the Judgment of the Court of 1960; and
- the determination made by the Mixed Commission established
under the auspices of the OAS on 15 December 1962. 586
10.3 The latter calculated the geographical coordinates of the terminus
point as established by the Award in general terms:
"...reconoci6 el punto de partida del lfmite
natural entre los dos pafses en 'la
desembocadura del brazo principal del rio
Coco, sefialado en el piano del Comisi6n de
Ingenieros con el nombre de "Brazo del Este",
punto que esta situado a los catorce grados
cincuenta y nueve minutos y ocho décimos de
586
See NM, Vol. 1,paras. 28-32.
195 minuto (14° 59.8') Latitud Norte y ochenta y
tres grados ocho minutos y nueve décimos de
minuto (83° 08.9') Longitud Oeste del
meridiano de Greenwich"' (NM, Volume II,
Annex 1, page 10).
The English translation made by the Pan American Union
erroneously translates "catorce grados cincuenta y nueve minutos y
ocho décimos de minuto (14° 59.8') Latitud Norte y ochenta y tres
grados ocho minutos y nueve décimos de minuto (83° 08.9')
Longitud Oeste" as ''fourteen degrees, fifty nine minutes, eight
seconds (14° 59' 8") North Latitude and eighty three degrees, eight
587
minutes, nine seconds (83° 8' 9") West Longitude". The correct
translation of the original Spanish text is as follows:
"... the starting point of the natural boundary
between Honduras and Nicaragua was at the
mouth of the main branch of the Coco River,
indicated on the map prepared by the
Committee of Engineers as 'Brazo del Este', a
point situated at fourteen degrees, fifty-nine
minutes and eight tens of minute (14°59.8')
North Latitude and eighty-three degrees, eight
minutes and nine tenth of minute (83°08.9')
588
West Longitude, Greenwhich meridian".
In any case, Honduras acknowledges the discrepancy between the
589
Spanish original version and the mistaken English translation.
10.4 Moreover, Nicaragua also explained that, since then, the mouth of
the river has continued to move, as it had done before, in a north
eastern direction and that, as a consequence, the point determined in
1962 is nowadays located about a mile south-eastwards from the
actual mouth of the Coco River 590as shown on the Spot photograph
of 25 February 2000 which was reproduced as Figure VII in the
Nicaraguan Memorial, Volume 1.
10.5 As a consequence of this rather uncommon- but not unprecedented
situation, Nicaragua has suggested that it would be justified to
legally neutra! ize the effectsf the instability and fluctuations of the
course of the Coco River on the course of the maritime delimitation,
and to establish the starting pointof the maritime boundary at a point
57
K NM Vol. II, Annex 1.
SKKSee NM, Vol. 1,pp. 30-31, fn. 14.
5K0See HCM, paras. 2.27-2.28 and p. 146, para. 7.44, fn. 51.
500NM, Vol. 1,Chap. VII, paras. 17-18.
196 situated three nautical miles out at sea from the mouth of the River
Coco. This point, as indicated in Chapter X, paragraph 27 of the
Nicaraguan Memorial, represents an approximate median line and
the sector produced by this method is coïncident with the alignment
resulting from the bisector method explained in Chapter VIII of the
Memorial and further developed in the previous Chapter of this
Reply. With respect to the first portion of three nautical miles of the
maritime boundary, Nicaragua suggested that the Parties be invited
591
to negotiate a solution.
10.6 For her part, Honduras has also underlined "the graduai movement
eastwards of the actual mouth of the River Coco" 592 - a statement
which is, however, somewhat misleading since, as shown on Figure
IX, Volume II of this Reply, this movement clearly is not
"eastwards" but east-north-eastwards. The Respondent State then
goes on to state that the 1906 Award of the King of Spain is still
binding (ibid. para. 7.40 - a fact which is not challenged by
Nicaragua) and to assert that "[i]t is clearly undesirable to seek from
the Court a line which, however accurate it may be on the day of the
Judgment, becomes less accurate as a reflection of the obligations of
the Parties under the Award of 1906 with the passage of time" (ibid.,
pp. 144-145, para. 7.41). lt follows that both Parties agree that it
would be appropriate for the Court not to attempt to try to crystallize
in a Judgment to which the res judicata principle applies a
constantly moving situation on the ground.
B.THE HONDURAN ARGUMENT
1O.7 However, Honduras goes on to invite the Court to divide the
boundary into three sectors and describes the first of these as
follows:
"A straight and horizontal line following the
thalweg of the River Coco from the point
identified in 1962 by the Honduras/Nicaragua
Mixed Commission to the current mouth, where
it reach593the sea as agreed by the two
Parties".
Figure X illustrates this proposai (Nicaraguan Reply, Volume Il).
591See NM, Vol. I, Chap. VII, para. 23, and pp. 85-86, paras. 29-30.
592HCM, Vol. 1, para. 7.39; see also p. 136, paras. 7.9-7.12.
593
HCM, Vol. 1, para. 7.41.
19710.8 This clearly is an untenable position. A line following the thalweg
will never, as a matter of definition, be "a straight horizontal line".
In fact, the first sector of the line requested by Honduras would eut
off Nicaragua from the mouth of the River Coco. This very telling
detail highlights the inherent inequity of the parallel system that
Honduras attempts to impose on Nicaragua.
10.9 The only justification given, in two brief sentences, by Honduras is
that "prudence (and res judicata) would suggest that the Court
should not be requested to determine either the location of the mouth
of the river, or even the starting point of the line immediate! y east of
that point. The Court should begin the line only at the outer limit of
the territorial waters".594This "explanation" - admitting it can be
held to be an explanation- is self-contradictory.
10.10 The main legal ground for the Honduran position is the res judicata
character of the Award of the King of Spain in 1906- a point which,
once again, is not challenged by Nicaragua, whatever the allegations
of Honduras to the contrary in her Counter-Memorial. 595 According
to this Award:
"The extreme common boundary point on the
coast of the Atlantic will be the mouth of the
River Coco, Segovia or Wanks, where it flows
out in the sea close to Cape Gracias a Dios,
taking as the mouth of the river that of its
principal arm between Hara and the Island of
San Pfo, where said Cape is situated, leaving to
Honduras the islets and shoals existing within
said principal mouth with the said Island of San
Pfo, and also the bay and town of Cape Gracias
a Dios and the arm or estuary called Gracias
which flows to Gracias a Dios Bay, between the
mainland and said Island of San Pfo." 596
10.11 It follows from this Award that the terminus of the land boundary
(and, consequently, the starting point of the maritime boundary) is
the mouth of the principal arm of the River Coco. This was the case
in 1906; this was the case in 1962; this is still the case to-day.
5Y HCM,Vol.l,para.7.41.
sYsHCM, Vol. 1, paras. 1.15-1.18.
SY6The NM, Annex 1, p. 22 - emphasis added; a map is annexed to the Report; ibid, p. 23
original Spanish text is reproduced in NM, p. 25, fn. 9.
19810.12 lt is significant in this respect that, after the Judgment of this Court
confirming the 1906 Award, the Mixed Commission charged with
the mission of verifying "[u]nder the terms of the Arbitral Award of
December 23, 1906, [... ] the starting point of the natural boundary
between the two countries at the mouth of the Coco River" (Pan
American Union, 16 July 1963, Report of the International Peace
Committee, Appendix 1, 13 March 1961, Basis of Arrangement,
paragraph 4 (b) - Nicaraguan Memorial, Annex l, page 16),
ascertained the said starting point on the basis of the geographical
situation at that time, thus implementing the self-evident idea that
the starting point of the land boundary westwards as weil as,
consequently, of the sea boundary eastwards, was situated at the
mouth of the main arm of the River Coco as it theo was.
10.13 lt is very significant in this respect that in its Report on the Studies
made at the mouth of the Coco, Segovia, or Wanks River, the
Honduran-Nicaraguan Joint Boundary Commission remarked:
"In comparing this map [the aerial photo map
of the region of the mouth of the Coco River
prepared by the Commission] with that
prepared by the British Navy for the area of
Cabo de Gracias a Dios, and with that of
Maximiliano Sonnenstem- but especially with
the former, which appears to have been
prepared more carefully and in greater detail -
it is noted that the topography of this area has
undergone constant changes through the years,
sorne caused by the closing of secondary
channels and the appearance of new ones, while
others resulted when parts of the Gracias a Dios
Bay filled up and Sunbeam Bay appeared. In
general, it has been noted that in this regionof
the mouth of the Coco River, the land has been
advancing toward the sea. On the British map
mentioned, there are various notes that indicate
topographical changes in the years 1883, 1886,
and 1912. The numerous changes in the
topography of the region through the years can
be seen597ry clearly in the aerial photographs
taken."
It is theo apparent that the Commission was clearly conscious of the
changes which had occurred in the topographical situation since the
597
The NM, Annex 1,p. 28 (Emphasis added).
199 1906 Award, and it is with full knowledge of these changes that it
determined the point of departure of the land boundary, taking into
account the situation as it then (in 1962) was.
10.14 It goes without saying that the legal situation is identical today: in
conformity with the Award of the King of Spain of 1906, the land
boundary ends where the main arm of the mouth of the River Coco
joins the sea; and the maritime boundary starts at this same point.
Given the progress of the River in an east-north-east direction, this
starting point, as can be appreciated in Figure IX, is now situated at
15°00'08"N and 83°08'00.6"W.
10.15 Clearly, the thalweg of the River Coco now joins the sea severa)
seconds north and east of the point identified by the Joint Boundary
Commission in December 1962. This progress into the sea can be
appreciated clearly in Figure IX of this Reply which indicates where
the River met the sea circa 1830/1843, in December 1962 and in
January 1998. Clearly, the topographical situation is still evolving
and will continue to do so in the predictable future.
10.16 For these reasons, the Parties seem to agree that it would be
improper to ask the Court to fix ne varietur the maritime boundary
immediately from this point. As explained above (paragraph 1 0.5),
this is the reason why Nicaragua has suggested that the point of
departure of the line to be decided in the Judgment of the Court
should be placed at a reasonable distance from the coast and that this
point could be situated three nautical miles from the mouth of the
Coco River. This distance would leave a considerable delay before
the line decided by the Court would have to be reconsidered due to
the seaward advance of the land mass and the mouth of the river:
approximately one mile during the last 40 years.
10.17 However, Nicaragua wishes to make clear that:
(i)the point of departure of the maritime boundary between
the two countries is the thalweg of the main arm of the
estuary of the River Coco as it reaches the sea and is
presently located at the coordinates indicated in paragraph
10.14 above;
(ii) the distance of three miles from this point is only a
suggestion and Nicaragua would have no objection to the
Court's fixing another distance (or no distance at ali if the
Court deems it more appropriate; but, in such a case, it would
seem to be proper that the Judgment also indicates a method
for future adaptations);
200 (iii) if the Court follows this suggestion, it would be
incumbent upon the Parties to negotiate a line representing
the boundary between the point of departure of the boundary
at the mouth of the River Coco and the point of departure
from which the Court will have determined the boundary
line; Nicaragua submits that it would be proper that, in their
agreement, the Parties agree on a method allowing them to
adapt the line in accordance with the possible future changes
of direction of the main arm of the River Coco.
10.18 In any case, Nicaragua firmly maintains that the suggestion of
Honduras to draw the first section of the boundary as a straight and
horizontalline from the point identified in 1962 toward the sea is not
acceptable. This is clearly an attempt by Honduras to induce the
Court to allocate to her a portionof land situated south of the mouth
of the River Coco which appertains to Nicaragua as was determined
by the Award of the King of Spain of 1906. As shown on Figure X,
Volume II of this Reply, this position of Honduras, implicitly but
necessarily, entails that the portion of the right bank situated north of
the line joining points A belongs to Honduras, in direct contradiction
of the Award (see above, paragraph 10.10).
10.19 In this respect, it must be kept in mind that Honduras herself has
formally acknowledged that the King of Spain's Award "is still
binding and the application of its terms requires the Parties to verify
the position of the mouth from time to time and to agree on any
necessary re-drawing of the boundary on their maps". 598 The
Repondent State is legally bound by this acknowledgement (see
above paragraph 8.4) and would be estopped from concluding
otherwise.
10.20 Moreover, Honduras has constantly affirmed that the relevant parts
of the Award were crystal clear; commenting on the operative
paragraphs of the Award and more specifically the second one,
according to which:
"Starting from the mouth of the Segovia or
Coco,. the frontier line will follow the
watercourse or thalweg of this river upstream
without interruption until it reaches the place of
its confluence with the Poteca or Bodega... ",
Herbert Briggs, Counsel for Honduras, declared on 24 September
1960, that these operative paragraphs:
598
HCM, Vol. 1, para. 7.40.
201 "... are a mode! of clarity. Even if the Award
had merely designated the river as the
boundary, it might have been assumed that the
thalweg rule would apply. The beautifully
written opinion of Mr. Justice Cardozo in New
Jersey v. Delaware, 291 United States Supreme
Court Reports, 361 (1934), traces the historical
evolution of the thalweg doctrine in
international law and finds that it had acquired
precision by the end of the eighteenth century,
the middle of a navigable river being regarded
for jurisdictional purposes as the middle of the
main channel. One may also cite the award of 6
June 1904 of the King of ltaly in the Brazil
British Guiana Boundary, 99 British and
Foreign State Papers 930; Kristian Gleditsch,
'Rivers as International Boundaries', 2 Acta
Scandinavia Juris Gentium, page 15 pages 20-
30 (1952); and Paul Geouffre de La Pradelle,
La frontière, pages 202 and the following
(1928).
"However, the Award of the King of Spain is
explicit: the river boundary from its principal
designated mouth upstream without interruption
is to follow thethalweg" (ICJ, Pleadings, Oral
Arguments, Documents - case concerning the
Arbitral Award Made by the King of Spain on
23 December 1906, Oral Argument of Mr.
Briggs (Honduras), 23 IX 60, p. 203; see also
the"Répliquede M. Guggenheim (Honduras), 7
X 60", ibid., p. 422: "La sentence est d'une
absolue précision sur ce point en décidant que
la frontière doit suivre lethalweg 'à partir de
l'embouchure du fleuve' 'vers l'amont sans
interruption"' and theRéplique du Honduras (3
VIII 59), ibid., pp. 538-540).
10.21 It is then quite apparent that Honduras has always interpreted the
Award as applying the thalweg principle, a fact which has been
formally acknowledged by the Court in its Judgment of 18
November 1960 (ICJ Reports 1960, pp. 216-217). lt cannot now put
it into question and invite the Court to decide on another basis, the
reasons for justification for which, moreover, are not in the !east
explained.
20210.22 The position Honduras now takes not only does not accord with the
text and the spirit of the Arbitral Award of 1906 and cannot be
reconciled with the interpretation that the Parties had given to that
Award in 1962, it also contradicts the usual principles applicable to
the allocation of territory to States in case of accretion or of change
of direction of a border river.
C.THE APPLICABLE GENERAL PRINCIPLES
10.23 With respect to accretion, the principle is clearly stated in the ninth
edition of Oppenheim: if new islands:
"rise in rivers (... ) or within the territorial sea
of a state, they are accretions to the territory of
that state. If an island rises within the territorial
sea, it accrues to the littoral state, and the extent
of the maritime belt may now be measured
from the shore of the newborn island" (Sir
Robert Jennings and Sir Arthur Watts eds.,
London, Longman, 1992, p. 698; see also,
Gilbert Gidel, Le droit international public de
la mer, Paris, Sirey, Vol. 3, pp. 664-726)
And, more generally, "[a]ccretion must ... be
considered as a mode of acquiring territory"
(Oppenheim's 9thedition, pree., page 696).
This makes clear that the new alluvial lands which have appeared on
the right bank since 1962 entirely belong to Nicaragua, since they
are situated south of the main arm of the River Coco, and it would be
improper to allocate them to Honduras, even indirectly, as would be
the result if the Honduran position were to be adopted.
10.24 In relation to the question of the course of the boundary from the
point determined in 1962 down to the actual mouth of the River
Coco, it is not open to discussion that it follows the thalweg and
thereis certainly no legal objection to the determination of the point
of departure of the maritime boundary on the mouth of the River
Coco if the Court deems it useful to so proceed. In this respect, the
well-established principlesof the effects of the changes that occur in
the course of a river are extremely helpful.
20310.25 As explained by Charles Rousseau:
"... fc]'est un principe établi de la pratique
internationale que toute modification
importante survenant dans le cours d'un fleuve
frontière entraîne une modification corrélative
de la délimitation à laquelleil sert de support, et
cela que la frontière ait étéfixée à la ligne
médiane, au thalweg ou sur l'une des rives"
(Droit international public, tome III, Les
compétences, Paris, Sirey, 1977, p. 261; see
also: J. Andrassy, "Les obligations de
voisinage", Recueil des cours, 1951, Vol. 79, p.
149; A.O. Cukwurah, The Settlement of
Boundary Disputes in International Law,
Manchester U.P., 1967, pp. 59-60; Charles De
Visscher, Problèmes de confins en droit
international public, Pedone, Paris, 1969, p. 62;
J.H.W. Verzijl, International Law in Historical
Perspective, Vol. III, Leiden, 1970, pp. 565-
569; Daniel Bardonnet, Les frontières terrestres
et la relativité de leur tracé (Problèmes
juridiques choisis), Recueil des cours 1976-V,
Vol. 153, p. 94 or Haritini Dipla, Les règles de
droit international en matière de délimitation
fluviale: Remise en question?, R.G.D.I.P. 1985,
p. 611 and the references cited, including Nys,
Hyde and McNair).
10.26 This rule has been acknowledged by Honduras during the oral
pleading in the case concerning the Land, Island and Maritime
Frontier Dispute (see the Judgment of the Chamber of 11 September
1992, ICJ Reports 1992, page 546, paragraph 308). Thus, Professor
Bardonnet, speaking as Counsel for Honduras, opposed the
Salvadoran claim concerning the effects of the claimed change in the
course of the River Goascoran by invoking:
"... la sentence Hughes rendue le 23 janvier 1933 dans
l'affaire Guatemala/Honduras [... qui] a clairement
reconnu, à propos du Rio Tinto et du Rio Motagua, que
dans l'hypothèse d'une avulsion comme d'ailleurs dans
l'hypothèse d'une érosion, la frontière suivra le
déplacement des cours d'eau 'in the interest of a definite
and satisfactory seulement to secure a lasting peace
between the Republics' (RSA, Vol. II; cf. CMH fin the
204 1992 case], Vol. II, Chap. XI, p. 568-571, par. 80-
81)"(C4/CR 92/27,21 May 1991, p. 26).
10.27 The international case-law clearly confirms this view. Thus in the
famous Chamizal case, the majority of the International Boundary
Commission stressed the "well-known principles of international law
[according to which, absent special provisions to the contrary in a
boundary agreement, a] fluvial boundary would continue,
notwithstanding modification of the course of the river caused by
graduai accretion on the one bank or degradation on the other bank"
(Award of 15 June 1911, R.I.A.A. XI, p. 320; the dissenting
Commissioner did not challenge this principle, but only its partial
application in the case - see ibid. pp. 337-341 - and the U.S. held
the Award as void on other grounds; see also the Arbitral Award of
23 January 1933 on the Borders between Honduras and Guatemala,
R.I.A.A. II, p. 1362: "... the boundary is established on the right
banks of these rivers at mean high mark, and, in the event of changes
in these streams in the course of time, whether due to accretion,
erosion or avulsion, the boundary shall follow the mean high water
mark upon the actual banks of both rivers").
10.28 The decisions of domestic Courts in federal States also confirm this
principle; thus, in Nebraska v. Iowa, the Supreme Court of the
United States stated that:
"lt is settled law, that when grants of land border on
running water, and the bank are changed by that
graduai process known as accretion, the riparian
owner's boundary line still remains the stream,
although, during the years, by this accretion, the
actual areaof his possessions may vary" (29 February
1892, 143 U.S. 359, 12 S. Ct. 396; see also the
impressive apparatus of quotes and citations ibid. and
2 February 1931, Louisiana v. Mississipi, 282 U.S.
458, 51 S. Ct. 197; Kansas v. Missouri, 8 May 1944,
322 U.S. 213,64 S. Ct. 975 orLouisiana v. Mississipi
et al., 2 April 1984, 466 U.S. 96, 104 S. Ct. 1645; see
also the decision of 12 November 1969 of the
Argentinian Commission for Inter-Provincial
Boundaries concerning the Rio Desaguadero at the
border between the provinces of Mendoza and San
Luis-- cited by D. Bardonnet, op. cit; pp. 94 and 154,
fn. 429).
20510.29 After a careful consideration of the practice of States and of the
international and domestic case-law, Professor Bardonnet concludes:
"Même en cas de silence des traités frontaliers, la
ligne divisoire suit les déplacements lents du fleuve
frontière, montrant ainsi qu'il n'existe pas de règle
suivant laquelle la limite fluviale serait immuable et
inaltérable" (op. cit., p. 95).
10.30 In the present case, it is therefore crystal clear that the end point of
the mainland border has moved together with the course of the River
Coco and that the end point of the mainland boundary is nowadays,
as it has legally been since the Award of the King of Spain of 1906,
"the mouth of the River Coco, Segovia or Wanks, where it flows out
in the sea close to Cape Gracias a Dios, taking as the mouth of the
river that of its principal arm". It is at that point, and not at the one
suggested by Honduras that the land boundary ends. Then, seawards,
both Parties agree in principle that it would be within the bounds of
common sense to fix a starting point at a reasonable distance from
the point at the mouth of the River. This starting point should be
placed on the bisector line as explained in Chapter X of the
Nicaraguan Memorial.
II. The Terminus of The Delimitation of The Maritime Boundary
10.31 The Parties have not yet dealt in detail with the end point of the
delimitation at sea. However, Nicaragua clearly indicated that "[t]he
line produced by the application of the bisector method continues up
to the area of seabed occupied by Rosalinda Bank, in which area the
claims of third states come into play". As shown on Figure XI of this
Reply and in Map A of her Memorial, Nicaragua has not fixed an
end point for the delimitation in order to take fully into consideration
the rights of third States in the region, more particularly of
Jamaica.See further Chapter IX, Section VI.
10.32 Such a proposai is in keeping with the usual princip les of maritime
delimitation when the rights of third States might be affected by a
tribunal's decision. The case-law of the Court itself clearly reflects
this principle.
10.33 Indeed, there can be no doubt that when the Court determines a
maritime boundary, it takes into account the claims of third States. It
is well-known, for example, that in Tunisia/Libya or in Libya/Malta,
206 or, more recently, in Cameroon v. Nigeria, the Court abstained from
prejudging the rights which other States, respectively Malta, Italy
and Equatorial Guinea, may have claimed in the region, and
confined itself to indicating the general directionof the boundary
(see Judgment of 24 February 1982, Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 91, para.
130, see also the map, at p. 90; Continental Shelf (Libyan Arab
Jamahiriya/Malta), Judgments of 21 March 1984, Application by
Italy for Permission to Intervene, ICJReports 1984, p. 27 and of 3
June 1985, ICJ Reports 1985, pp. 26-28, paras. 21-23, and Judgment
of 10 October 2002, Land and Maritime Boundary Between
Cameroon and Nigeria, paras. 238, 245 and 307). As the Arbitral
Tribunal put it in the Award of 17 December 1999 between Eritrea
and Yemen (Maritime Delimitation):
"The Tribunal has the competence and the
authority according to the Arbitration
Agreement to decide the maritime boundary
between the two Parties. But it has neither
competence nor authority to decide on any of
the boundaries between either of the two Parties
and neighbouring States. It will therefore be
necessary to terminate either end of the
boundary line in such a way as to avoid
trespassing upon an area where other claims
might fall to be considered" (Award, p. 40,
para. 136).
This is the reason why Nicaragua avoided specifying in her
Memorial the point where the delimitation requested in the present
case must end. In conformity with these precedents, the Court is not
called upon to fix a tripoint where the maritime boundary between
Nicaragua and Honduras meets the limit of the maritime jurisdiction
of any third State.
10.34 By contrast, Honduras asks 1he Court to declare that the boundary
line extends "along the 15 parallel (14° 59' 8") until it reaches the
longitude at which the 1986 Honduras/Colombian maritime
boundary begins (meridian 82)" (Honduran Counter-Memorial,
Submission 2, page 151; see also page 146, (3), and page 150,
paragraph 8.13). Such a request clearly contradicts the above
mentioned jurisprudence according to which the Court considers that
it "is not entitled" to fix a tripoint in cases concerning maritime
boundaries where only 2 of the 3 States involved are Parties to the
207 case (see Judgment of 10 October 2002, Land and Maritime
Boundary Between Cameroon and Nigeria, paragraph 238).
10.35 The developments above show that the terminus of the Nicaraguan
line, as weil as the line as a whole, do not encroach on the claims of
third States. Furthermore, that the treaties of third States cited by
Honduras are by no means opposable to Nicaragua.
599This mention of the c/aims of third States does not imply that Nicaragua recognizes
them as legally well-founded.
600See HCM, paras. 2.18-2.20 or 7.37.
208 SUBMISSIONS
In accordance with Article 49 paragraph 4 of the Rules of Court, the
Government of the Republic of Nicaragua confirms the Submissions
previously made in the Memorial submitted to the Court onarch 2001.
The Hague, 13 January 2003.
Carlos J. ARGÜELLO G6MEZ
Agent of the Republic of Nicaragua
209 ADDENDUM
This Addendum contains further information on the question of the turtle
fisheries that has been dealt with above in Chapter IV paragraphs 4.46 to
4.53 and in Chapter VI paragraphs 6.91, 6.93, 6.108 and 6.115. The
documents reproduced in Annex 39, which are the subject of this
Addendum, were received after Nicaragua had sent this Reply to the
printers. They proceed from the United Kingdom Public Record Office and
deal with the negotiations between the Nicaraguan and the British
Govemments for the extension of the Turtle Treaty that was to expire on 14
August 1959.
These documents include an extract from a letter from Commander R. H.
Kennedy of the British Admiralty to Mr. E.C. Burr of the Colonial Office
dated 27 November 1958 attached with a list of cays and reefs that could be
daimed by Nicaragua and a sketch showing the sort of base line system that
could be adopted by Nicaragua in making a daim to territorial seas under
the 1958 Geneva Conventions. This opinion of Commander Kennedy was
for the purpose of illustrating the British officiais of the type of maritime
daims Nicaragua could make during the negotiation of a new Turtle Treaty.
It must be recalled that the British Govemment had been negotiating these
types of agreements with Nicaragua since the 19 1h Century and were weil
aware of the position of Nicaragua and the daims she would make. In fact,
as can be appreciated in the letter of Mr. K.W Blackbume to His Excellency
A. G. Battle on 7 April 1959, the British negotiators were worried that the
daims of Nicaragua might become more extensive after the Second
UNCLOS Convention that was to take place in 1960 and was expected to
increase the extentof the territorial sea and fishing zones. In the event, no
agreement was reached on a new treaty and the UNCLOS Convention did
not produce the expected results.
What is important is that the map and list of cays prepared by Commander
Kennedy indudes the islets, cays and reefs claimed by Nicaragua in the area
in dispute with Honduras. The list and the map indude ali islets, cays and
reefs up to the Main Cape Channel. This was only to be expected. As
pointed out in Chapter IV paragraph 4.52 above, the only port in the area
was the Nicaraguan Port of Cape Gracias a Dios and that channel was the
main channel for entering and leaving the Port. The Note on "Turtle Fishing
in Nicaraguan Waters" with copy sent to the Commissioner of the Cayman
Islands, initialed and dated 18-12-58 indicates the procedure that the
Caymanians had to follow in order to fish in Nicaraguan waters: "they are
first obliged to goto Cape Gracias in order to formally 'enter' Nicaraguan
territorial waters, and to dear from Cape Gracias on the way home."
211What was the role of Honduras when ali these events took place? In Chapter
IV paragraph 4.50 the point is made that when the Pleadings before the
King of Spain were taking place in 1905-1906 Honduras was silent about
the areas presently in dispute.
The documents in Annex 39 of this Reply bring matters up to date. In 1958-
1959 when these last negotiations were taking place between Nicaragua and
Great Britain, Nicaragua and Honduras were before the Court Pleading in
the case conceming the Arbitral Award of the King of Spain. The Award in
question involved areas in the vicinity of Cape Gracias a Dios. There is not
a single reference by Honduras to these islets and cays in those Pleadings.
The record of the turtle fishery negotiation between Nicaragua and Great
Britain, and the actual fishing going on in the area in dispute since the 19 h
century, clearly demonstrate that the only sovereign in the area in dispute is
and has been Nicaragua. The greatest maritime super power of the period
knew the sovereign they had to negotiate with in order to fish in the vicinity
of Cape Gracias a Dios.
The Hague, 13 January 2003.
Carlos J.ARGÜELLO G6MEZ
Agent of the Republic of Nicaragua
212 LIST OF MAPS AND FIGURES
(VOLUME II)
FIGURES
Figure 1 Cut-off effect the use of the 15° parallel would have on the
Nicaraguan maritime areas if it were used as a line of
delimitation with Honduras.
Figure II General direction of the land boundary along the River
Coco and its projection seawards.
Figure III Sizes of Savanna Cay, Bobel Cay, Port Royal Cay, and
South Cay.
Figure IV Relative sizes of The Morrison Dennis Cays and Miskito
Cay.
Figure V The Agreement between Portugal and Spain on the
delimitation of the continental shelf, of 12 February 1976.
Figure VI Agreement delimiting the continental shelf of United
Kingdom and Ireland.
Figure VII The delimitation effected by the Tribunal in the
Guinea/Guinea Bissau arbitration with and indication of the
general direction of the West African coast.
Figure VIII 6 nautical mile territorial sea limit from the mouth of the
River Coco to the Main Cape Channel.
Figure IX Movement northeastwards of the actual mouth of the River
Coco.
Figure X Effect of the Honduran proposais for delimitation on the
Nicaraguan Island at the mounth of the River Coco.
Figure XI The delimitation proposed by Nicaragua has no end point
and does not affect the rights of third States in the region.
MAPS
Mapi Map prepared by the Mixed Boundary Commission that was
charged with establishing the boundary in the terms agreed
upon in the 1894 Treaty between Nicaragua and Honduras.
Mapii Map of Honduras prepared for the National Directorate of
Honduras in 1899 by Francisco Altschul.
Map III School map of the Republicof Honduras published in 1984.
MapiV Official mapof Nicaragua prepared in 1982.
MapV Official Map of Nicaragua, 1997 edition.
213Annex 17 b:Resolution concerning an Oil Concession Granted to ··union Oil
Company of Central America ··,Resolution No. 75-DRN. Published in the
Official Gazette of Nicaragua N. 130 of 12June 1974.....................91.
Annex 18: Oil Concession Granted to "Union Oil Company of Central
America" ..............................................................93........
.....
Annex 18 a: Resolution concerning an Oil Concession Granted to ··union
Oil Company of Central America ··,Decree N. 73 - DRN. Published in the
Official Gazette of Nicaragua N. 22 of27 January 1975...................93.
Annex 18 b: Resolution concerning an Oil Concession Granted to ·union
Oil Company of Central America ··,Resolution N. 112-DRN. Published in
the Official Gazette of Nicaragua N. 22 of 27 January 1975..............95..
Annex 18 c: Resolution concerning an Extension of an Oil Concession to
"Union Oil Company of Central America", Decree N. 170-DRN. Published
in the Official Gazette of Nicaragua N. 108 of 18 May 1977.............96
Annex 18 d: Resolution concerning an Extension of an Oil Concession to
··union Oïl Company of Central America", Resolution N. 207-DRN.
Published in the Official Gazette of Nicaragua N. 108 of 18 May 1977... 98
Annex 18 e: Resolution concerning an Extension of an Oil Concession to
··union Oil Company of Central America", Decree N. 190-DRN. Published
in the Official Gazette of Nicaragua N. 291 of22 December 1977............99
Annex 18 f:Resolution concerning an Extension of an Oil Concession to
··union Oil Company of Central America", Resolution N. 225-DRN.
Published in the Official Gazette of Nicaragua N. 291 of 22 December
1977........................................................................
....................................
Annex 19: Excerpt from pages IV, 6, 11, 12 and 29 of "Regional Project for
Fisheries Development In Central America. Project Accomplishment
Report, Conclusions and Recommendations" FI: DP/RLN65/030 by Food
and Agriculture Organization (FAO). Roma, September 1972.................. 103
Annex 20: "Regional Project for Fisheries Development In Central
America. V Working Meeting." CNFI/67/26 San José, Costa Rica. 28-30
November 1967. Pp. 6 and 32............................................109.....
Annex 21: Witness Statement of Mr. Herman Emmanuel Presida ......... 121
Annex 22: Witness Statement of Mr. Hayword Clark Mclean ...............123
Annex 23:Witness Statement of Mr. Arturo Mohrke Vega...................127
Annex 24:Witness Statement of Mr. Jorge Morgan Britton ..............131.
Annex 25:Witness Statement of Mr. Leone) Aguirre Sevilla ..............135
Annex 26: Fishing Explorations in the Central America Caribbean Sea with
Emphasis on Deep Waters. R/V CANO PUS April to October 1971, by
Marcel Giudicelli. El Salvador, 1971. Figure 6.........................139....
Annex 27:Witness Statement of Mr. Arturo Mohrke Vega ................141
Annex 28: "Turtle Fisheries off the Mosquito Cays", Printed for the use of
the Foreign Office, June 1905. Pp. 266 and 269.........................143...
Annex 29: Law on Maritime Spaces of Nicaragua, Law N. 420. Published in
the Official Gazette of Nicaragua N. 57 of 22 March 2002...............147
Annex 30: Excerpt from page 37 of "Geografia de Nicaragua" by Professor
Francisco Tenin, UNESCO Expert on duty in Nicaragua and Doctor Jaime
216Incer Barquero, Scientific Advisor to the Ministry of Public Education of
Nicaragua First Edition, Managua, Nicaragua, C.A. 1964, sponsored by the
Central Bank of Nicaragua ..............................................149......
Annex 31: "Geographie Index of Nicaragua. River, Lakes and Beaches" by
Jaime Incer Barquero. VOL 1,Managua, Nicaragua, 1971. Prologue and Pd.
124 .................................................................151....
........
Annex 32: Minutes of Agreements of the Meetings between Jamaica and
Nicaragua ..............................................................155.......
....
Annex 32 a:Minutes of Agreements of the Second Meeting between
Jamaica and Nicaragua to negotiate a Maritime Delimitation Treaty. Dated
29 and 30thMay 1996.....................................................155......
Annex 32 b:Minutes of Agreements of the Third Meeting between Jamaica
and Nicaragua to negotiate a Maritime Delimitation Treaty. Dated 29
November 1996 ........................................................157.........
Annex 33:Diplomatic Note From the Deputy Solicitor General of Jamaica to
the Ministry of Foreign Affairs of Nicaragua. Dated 8thJanuary 1997.... 161
Annex 34:Political Constitutions of Nicaragua ............................163.
Annex 34 a:Article 2 of the Political Constitution of Nicaragua (1948)..163
Annex 34 b:Article 5 of the Political Constitution of Nicaragua (1950)..163
Annex 34 c:Article 3 of the Political Constitution of Nicaragua (1974)..163
Annex 35: Certification of Mr. Harry Bodan-Shields. Dated 30th August
2002 .....................................................................165
..........
Annex 36: Statement of Clarification of Mr. Oscar Rafael Guevara
Oc6n......................................................................167.........
Annex 37: Organic Law of the Nicaraguan Fishing Institute (INPESCA),
Decree N. 1,426. Published in the Official Gazette of Nicaragua N. 82 of 26
April1984 ................................................................169.....
...
Annex 38: Witness Statement of Mr. Luis Adrian Pichardo................173
Annex 39: Turtle fishery treaty negotiation documents 1958-1959......... 177
217
Reply of the Government of Nicaragua